Petition for Writ of Certiorari — Miniel v. Dretke
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In the
Supreme Court of the United States
PETER J. MINIEL,
Petitioner,
JANIE COCKERELL, DIRECTOR
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Gregory R. Merz
Counsel of Record
Gray, Plant, Mooty, Mooty & Bennett, P.A.
3400 City Center
33 South Sixth Street
Minneapolis, Minnesota 55402
(612) 334-2800
(612) 333-0066 (fax)
Attorney for Petitioner,
Peter J. Miniel
2003 — Bachman Legal Printing @ (612) 339-9518 @ 1-800-715-3582 @ Fax (612) 337-8053
ae
CAPITAL CASE
QUESTIONS PRESENTED
8 Whether the Fifth Circuit erred in finding that
trial counsel’s failure to investigate Mr. Miniel’s mental
functioning and, as a result, failure to discover evidence that
Mr. Miniel was suffering from a significant brain impairment,
was consistent with prevailing professional norms,
notwithstanding counsel’s knowledge of facts that should
have put him on notice of the need to investigate further?
a Whether the Fifth Circuit unreasonably applied
Strickland v. Washington and Strickland’s progeny, including
Wiggins v. Corcoran and Williams v. Taylor, in concluding
that trial counsel’s failure to offer mitigating evidence of Mr.
Miniel’s physical and emotional abuse at the hands of his step
father, his abuse of drugs and alcohol, and brain damage
which impaired his reasoning abilities, did not cause Mr.
Miniel to suffer prejudice in the sentencing phase of his
capital murder trial?
2. Whether the Fifth Circuit’s rejection of Mr.
Miniel’s Penry claim was based on an improperly limited
reading of this Court’s decisions in Penry J and Penry II?
LIST OF PARTIES
Pursuant to Rule 14.1(b), the following list identifies
all of the parties before the United States Court of Appeals for
the Fifth Circuit: .
Peter J. Miniel was Petitioner-Appellant, below. Janie
Cockerell, Director of the Fexas Department of Criminal
Justice, Institutional Division, was Respondent-Appellee
below.
il
TABLE OF CONTENTS
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PETITION FOR WRIT OF CERTIORARI................00000000 l
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ae a cslishesahea prin ebiaeiss+xsundibersanessivenenkinssns ]
STATUTORY PROVISION INVOLVED................0:::0000 l
RMI OPEB OUES GIS occ chacsncnessscovevdenodnsridasecsdsnenss 2
A. Mr. Miniel’s Trial Proceedings......................0008. me
B. Trial Counsel’s Failure to Investigate and
Present Mitigating Evidence................:.0scocsseseseoss 3
C. State Post Conviction Proceedings....................000 7
D. Mr. Minist’s Federal Habeas Petition .................... 8
E. The Fifth Circuit’s Denial of COA ........................ 8
REASONS FOR GRANTING THE PETITION ....000.00.2... 10
I.
II.
IT.
THE FIFTH CIRCUIT FAILED TO
REASONABLY APPLY SUPREME
COURT PRECEDENT IN CONCLUDING
THAT MR. MINIEL’S TRIAL
COUNSEL’S FAILURE TO
INVESTIGATE MR. MINIEL’S MENTAL
AND PSYCHOLOGICAL CONDITION
DID NOT CONSTITUTE
PROFESSIONALLY UNREASONABLE
GN sass sieceaions suicesucevypanadesncimcacdadneseaiionidaniodn 10
IN LIMITING THE PREJUDICE
ANALYSIS APPLIED IN WIGGINS AND
WILLIAMS TO THE SPECIFIC FACTS IN
THOSE CASES, THE LOWER COURT
FAILED TO CONSIDER WHETHER
THERE WAS A REASONABLE
PROBABILITY THAT THE OMITTED
MITIGATING EVIDENCE, TOGETHER
WITH THE MITIGATING EVIDENCE
THAT WAS PRESENTED, WOULD
HAVE CAUSED ONE JUROR TO
ANSWER ONE OF THE TWO SPECIAL
ISSUE QUESTIONS IN THE NEGATIVE......... 15
THE FIFTH CIRCUIT ERRED IN ITS
APPLICATION OF THIS COURT’S
RP AAR GEO TRIOUE ES sinicciiikinnenransnbesitebnnnancapasiite 22
iV
IV. THE FIFTH CIRCUIT’S DENIAL OF COA
DESPITE SIGNIFICANT EVIDENCE
SUPPORTING MR. MINIEL’S CLAIM ~-
REPRESENTED AN UNREASONABLE
APPLICATION OF THE CORRECT
STANDARD ARTICULATED BY THIS
CPI EIN BEEBE vnsiscnviveisnvasencaceinsenenscscien 22
CONCLUSION
FART ae dco ocinsseseriesvignnnee nee A-i
TABLE OF AUTHORITIES
Cases
Battenfield v. Gibson,
236 F.3d 1215, 1228 (10™ Cir. 2001)..........scssseseessoseseeeess 1]
Carter v. Bell,
218 F.3d 581,596 (6" Cir. 2000) .........000-. ecninailastaeiannaiias 1]
Frazier v. Huffman, se
50 TOP, FIR Cie FOO) in ntiridnci caus 16
Jackson v. Calderon,
TES ER Cir: DOOD) oo cxsccssiiestciincermresivieneenindes 12
Miller-El v. Cockrell,
BO? US. S22, 123 B. Ct. WOZS (AGBS) osiisscvscesevesenvesenss 21,22
Penry v. Johnson,
Dae US. FEZ, 123 S. Ce. VOID CIO paciccssensscssccccsscome 11,21
Penry v. Lynaugh,
G2 US. FOZ, SED, 109 FS. C2. ZIFF a cccsccctcicssesress 16, 18, 21
Skipper v. South Carolina,
Pe re By Fy PO BA. TOP vs cnccncsaiescscrmnsserecrrncnies 16
Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052 (1984)... 9, 13, 15
Wiggins v. Smith,
Bg Bd AA. SIRE URIS) cnvcsicorsbatrnrevccnnnring passim
Williams v. Taylor,
S29 US. S62, 128 S.C0. 1495S (LO) vosccccserconerssnrsoaey passim
Statutes |
its A TEE fetnsivccenicsrcs iano ee l
BE © I vicinsssnisaniersdeicionienaeaaan 1,8
V1
PETITION FOR WRIT OF CERTIORARI
Petitioner Peter J. Miniel respectfully requests this
Court to issue a writ of certiorari to review a decision of the
United States Court of Appeals for the Fifth Circuit.
OPINIONS BELOW
The decision of the United States Court of Appeals for
the Fifth Circuit is reported at 339 F.3d 331 (5™ Cir. 2003),
and is reprinted at Pet. App. A-1 to A-28. The decision of the
United States District Court for the Southern District of Texas
is unreported and relevant excerpts are reprinted at Pet. App.
A-33 to A-68. The order of the United States Court of
Appeals for the Fifth Circuit denying rehearing and rehearing
en banc, is set forth at Pet. App. A-29 to A-30.
JURISDICTION
The Court of Appeals’ judgment was entered on July
17, 2003. A timely petition for rehearing and rehearing en
banc was filed and was subsequently denied on August 18,
2003. The jurisdiction of this Court is invoked pursuant to 28
U.S.C. § 1254(1).
STATUTORY PROVISION INVOLVED
This case involves the provision of the federal habeas
statute governing federal review of state court decisions, 28
U.S.C. § 2254, reprinted at Pet. App. A-32.
STATEMENT OF THE CASE
A. Mr. Miniel’s Trial Proceedings
On October 7, 1988, Mr. Miniel was convicted of
capital murder in connection with the death of Paul Manier.
During the sentencing phase of the trial, the State presented
the testimony of five witnesses, four of whom testified
concerning Mr. Miniel’s criminal history during the time that
he lived in Illinois, prior to moving to Texas, which consisted
of a misdemeanor convictions for retail theft and disorderly
conduct, a guilty plea to an aggravated battery in connection
with an altercation with a girlfriend, revocation of probation
on a misdemeanor charge of unlawful use of weapons (which
revocation was based on his guilty plea to aggravated
battery), and a subsequent unadjudicated charge of aggravated
battery, again relating to am altercation with his girlfriend.
The fifth State’s witness, an officer with the Humble Police
Department of Humble, Texas, testified regarding Mr.
Miniel’s bad reputation in the community for violence.
Mr. Miniel’s trial counsel presented only three
witnesses at the sentencing phase, none of whom had known
Mr. Miniel prior to the crime. One of these witnesses, Darryl
Hendrickson, an officer working in the Harris County Jail,
testified that Mr. Miniel had not presented any disciplinary
problems during his incarceration. The second witness, Carol
Weed, was a venireperson who had not been selected for Mr.
Miniel’s jury and who had visited Mr. Miniel several times
while he was in jail. The third witness, Juan Cortez, an
assistant chaplain working at the jail, testified regarding Mr.
Miniel’s attendance at church services. The record reflects
that Mr. Miniel’s trial counsel first spoke with both Ms. Weed
and Mr. Cortez only the day before they testified. '
| 28 S.F. at 94, 104.
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On October 12, following the two-day sentencing
hearing, the jury returned affirmative answers to the two
special issue questions then required under Texas law.
B. Trial Counsel’s Failure to Investigate and Present
Mitigating Evidence
In this case, trial counsel failed to perform any
investigation whatsoever of his client’s social history. Mr.
Miniel’s trial counsel presented only three witnesses at the
sentencing phase, none of whom had known Mr. Miniel prior
to the crime and two of whom counsel first spoke with only
the night before they testified. Thus, Mr. Miniel’s jury did
not hear any evidence about the circumstances of Mr.
Miniel’s life before the crime that could help to explain his
involvement and render that involvement in a less culpable
light.
The record developed in post-conviction proceedings
in state court establishes that there was ample mitigating
evidence available, had counsel only looked for it. Had Mr.
Miniel’s trial counsel performed any investigation at all he
would have discovered the following, all of which was
presented in support of Mr. Miniel’s petition:
e That Mr. Miniel suffered from a brain
impairment, including significant dysfunction in
the frontal lobes of his brain;
* That Mr. Miniel’s brain dysfunction severely
limited his ability to comprehend the
consequences of his actions;
* That Mr. Miniel’s disabilities were exacerbated by
parental neglect, abandonment, abuse, many head
injuries, and chronic substance abuse;
3
That Mr. Miniel was a victim of severe child
abuse by his adoptive father who beat Mr. Miniel
with his fists and whipped him with a belt;
That Mr. Miniel was born to a mother who did not
want him and who immediately pawned him off
on the first relative she could find;
That Mr. Miniel never knew his natural father and
that his adoptive father, the only father he ever did
know, made Mr. Miniel the family scapegoat;
That Mr. Miniel and his adoptive siblings were
frequently left alone, either at home or sitting in
the car, while their mother was at work and their
father was getting drunk;
That Mr. Miniel’s adoptive moiher suffered from
extended bouts of serious mental illness
throughout his childhood;
That each of Mr. Miniel’s siblings attempted
suicide at least once;
That, upon finding out at age twelve that he was
adopted, Mr. Miniel experienced a radical
personality change, which reflected itself in
hostility and anger as well as alcohol and drug
abuse;
That, while in his early teens, Mr. Miniel
frequently drank until he passed out;
e That Mr. Miniel’s drug and alcohol abuse
interfered with his ability to learn and that he
dropped out of school at age 16;
e That Mr. Miniel’s alcohol and drug use continued
to escalate through Mr. Miniel’s teens and into his
early twenties;
e That Mr. Miniel was seriously injured in a number
of automobile accidents.
One of Mr. Miniel’s sisters recounted a harrowing
description of one beating that Mr. Miniel suffered at the
hands of his adoptive father:
John [one of Mr. Miniel’s adoptive brothers]
told my father that Peter had hurt his
feelings. My father became enraged and
jumped on top of Peter. He pinned Peter’s
arms to the floor by kneeling on them. He
then started hitting Peter across the face over
and over again until Peter’s face was
covered with blood. Peter was only about
10 years old at this time. I finally yelled out
for my father to stop. I thought he was
going to kill Peter. I have never seen
anyone else be beaten like this.
Pet. App. A-117. Another sister recalls, “Other times, Dad
would grab Peter’s upper arm, pick him up, and hold him in
the air while he beat him, either with his hand or a belt. I still
remember the sight of Dad unhooking his belt, pulling it off,
and beating Peter with it everywhere. Dad would shake
Peter’s arms so hard, while holding him in the air, that it
seemed like, if he shook any harder, Peter’s arm would just
snap off.” Pet. App. A-141.
In addition to the affidavits of Mr. Miniel’s family
members describing his childhood and early adulthood —
properly described as “nightmarish” — Mr. Miniel also
presented an expert neuropsychological and psychological
evaluation. Pet. App. A-97 to A-112. The report of that
evaluation concluded:
The current evaluation indicates that Peter
has incurred mild overall brain impairment,
‘has below average intellectual functioning,
has a long history of physical and emotional
abuse and abandonment, and has a lengthy
history of chronic substance abuse. The
effects of this history and_ his
neuropsychological dysfunction would be
consistent with moderate impairment of his
mental, cognitive, academic, social, and
behavioral functioning. The diffuse nature
of his neuropsychological dysfunction limits
his ability to use good judgment, to reason
and to inhibit impulsive behaviors.
Pet. App. A-97. The expert report found Mr. Miniel to have a
significant dysfunction in the frontal lobes of his brain, noting
that damage to the frontal lobes severely limits a person’s
ability to think, reason, and control impulses, and stating that,
“These severe limitations hinder Peter’s ability to
comprehend the consequences of his actions.” Pet. App. A-
110. Further, the report put Mr. Miniel’s brain damage in the
context of his social history in a way that would support a
conclusion of diminished culpability for the crime:
The results and background data indicate a
high probability that Peter has
neuropsychological impairment that is
probably a result of his two closed head
6
injuries as well as beatings to the face and
head in childhood. Possibility of prenatal
damage also exists since his mother was
chemically dependent during the pregnancy.
His disabilities have been exacerbated by
parental neglect, abandonment, abuse, his
many head injuries, and chronic long term
substance abuse. Any single one of these
factors can produce significant dysfunction.
Child neglect and abuse often lead to poor
impulse control, poor frustration tolerance,
and incapacitating personality functioning.
Head injuries can frequently emulate similar
dysfunction. Chronic drug abuse can also
generally produce brain impairment.
Pet. App. A-111.
C. State Post Conviction Proceedings
Following the denial of direct appeals from his
conviction, Mr. Miniel filed a petition with the state court for
post conviction relief which included a claim of ineffective
assistance of counsel arising from his trial counsel’s failure to
investigate and offer mitigating evidence. In support of his
ineffective assistance of counsel claim, Mr. Miniel submitted
affidavits of family members recounting his harrowing social
history, as well as the expert neuropsychological and
psychological evaluation described above. Mr. Miniel also
requested an evidentiary hearing. The State, in response to
Mr. Miniel’s ineffective assistance of counsel claim, offered
the affidavit of Mr. Miniel’s trial counsel, who attempted to
excuse his failure to perform even a rudimentary investigation
of Mr. Miniel’s social history.
Notwithstanding many disputed issues of fact, the
state court did not grant, or, indeed, even rule on Mr. Miniel’s
request for an evidentiary hearing, but instead, requested, by
way of an ex parte telephone call to the State, that the parties
submit proposed findings. Following the parties’ submission
of their respective proposed findings, the district court judge,
who was not the judge who presided at Mr. Miniel’s trial,
signed the Findings prepared by the State, adopting those
Findings without any modification — indeed, without even
removing the words “Respondent’s Proposed” from the title
of the document. The Texas Court of Criminal Appeals, in a
page and a half, eight sentence, per curiam decision, adopted
the district court’s recommended decision and denied Mr.
Miniel’s petition without any substantive analysis.
D. Mr. Miniel’s Federal Habeas Petition
Following the state court’s denial of his petition for
post conviction relief, Mr. Miniel filed his application with
the federal court, seeking relief pursuant to 28 U.S.C. § 2254.
In connection with that application, Mr. Miniel again
requested an evidentiary hearing. The lower court, however,
granted the State’s motion for summary judgment, dismissing
Mr. Miniel’s claims, and subsequently denied Mr. Miniel’s
motion to amend or alter judgment.
E. The Fifth Circuit’s Denial of COA
Following the federal district court’s grant of
summary judgment denying Mr. Miniel’s petition for post
conviction relief, Mr. Miniel petitioned the Fifth Circuit for
Certificate of Appealability (“COA”), pursuant to 28 U.S.C.
2253(c). In that petition, Mr. Miniel sought leave to appeal
on the ground, among others, that his trial counsel’s failure to
investigate and present mitigating evidence constituted
constitutionally ineffective assistance of counsel which
8
established a substantial showing of the denial of a
constitutional right.
The Fifth Circuit recognized that Mr. Miniel’s
ineffective assistance of counsel claim was governed by this
Court’s decision in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984). Under Strickland, a party
demonstrates ineffective assistance of counsel rising to the
level of a Constitutional violation when that party
demonstrates that counsel’s performance failed to meet
generally accepted standards of competence and that, but for
counsel’s ineffective performance, there exists a reasonable
probability that the outcome of the case would have been
different. 466 U.S. at 687.
In denying the COA, the Fifth Circuit found that Mr.
Miniel’s trial counsel was not constitutionally ineffective as a
result of his failure to conduct an investigation into Mr.
Miniel’s damaged psychological condition because counsel
was not sufficiently “on notice” of that condition. With
respect to counsel’s failure to investigate Mr. Miniel’s social
history, the court did not consider arguments relating to the
first prong of Strickland, resting its decision, instead, solely
on its conclusion that Mr. Miniel had failed to establish
prejudice arising from the failure to present mitigating
evidence. The lower court found that, in light of the facts of
the crime, there was not a reasonable probability that, even
had the mitigating evidence been presented, the jury would
have decided differently. The court, in a footnote, addressed
Wiggins v. Smith, _ U.S. __, 123 S.Ct. 2527 (2003), and
Williams v. Taylor, 529 U.S. 362, 128 S.Ct. 1495 (2000), two
recent decisions in which this Court found ineffective
assistance arising from counsel’s failure to investigate and
present mitigating evidence. The court rejected Mr. Miniel’s
reliance on those cases on the ground that the mitigating
evidence proferred by Mr. Miniel in support of his claim for
9
post-conviction relief was “mild” when compared with the
evidence in Wiggins and Williams.
REASONS FOR GRANTING THE PETITION
I. THE FIFTH CIRCUIT FAILED TO
REASONABLY APPLY SUPREME COURT
PRECEDENT _IN CONCLUDING THAT MR.
MINIEL’S TRIAL COUNSEL’S FAILURE TO
INVESTIGATE MR. MINIEL’S MENTAL AND
PSYCHOLOGICAL CONDITION DID NOT
CONSTITUTE PROFESSIONALLY
UNREASONABLE CONDUCT
Mr. Miniel’s trial counsel did not retain any experts or
otherwise perform any investigation of Mr. Miniel’s mental
and psychological condition. As discussed above, expert
evidence presented in Mr. Miniel’s post conviction case
showed Mr. Miniel to be suffering from a serious brain
impairment that “limit[ed] his ability to use good judgment, to
reason and to inhibit impulsive behaviors.” The Fifth Circuit
concluded that counsel’s failure to do any investigation of Mr.
Miniel’s mental functioning that would have uncovered this
important mitigating evidence did not constitute
professionally unreasonable conduct because counsel was not
sufficiently “on notice” of the need to investigate. Pet. App.
A-22. The lower court based this conclusion trial counsel’s
reliance on the fact that Mr. Miniel had been pronounced
competent to stand trial and on trial counsel’s claim that Mr.
Miniel has been “lucid and conversant” in their meetings. Jd.
This conclusion is contrary to this Court’s teaching in
Strickland, as further developed in Williams and Wiggins.
Under the first prong of the now-familiar Strickland
test, a defendant claiming constitutionally ineffective
assistance of counsel must show that counsel’s representation
10
fell below an objective standard of reasonableness. 466 U.S.
at 687-88. The Court has not established specific
requirements to be used to determine objective
reasonableness. Rather, “the proper measure of attorney
performance remains simply the reasonableness under
prevailing professional norms.” Jd. at 688. In order to
comply with the Constitution’s requirement that a sentence of
death be based on an individualized sentencing determination,
the jury must consider all mitigating evidence related to a
defendant’s character and background. See Penry v. Johnson,
532 U.S. 782, 121 S. Ct. 1910 (2001); see also Williams, 529
U.S. at 396 (recognizing counsel’s “obligation to conduct a
thorough investigation into the defendant’s background,”
citing 1 ABA Standards for Criminal Justice 4-4.1,
commentary, p. 4-55 (2d ed. 1980)). Accordingly, minimum
standards of professional competence require that counsel for
an accused facing the death penalty conduct a thorough
investigation to discover mitigating evidence that can be
submitted to the fact-finder during the penalty phase of the
trial.
Other circuits have similarly emphasized the
fundamental nature, in a death penalty case, of an adequate
inquiry into the availability of possible mitigating evidence.
See, e.g., Battenfield v. Gibson, 236 F.3d 1215, 1228 (10" Cir.
2001) (reversing sentence of death based on finding that
counsel’s failure to interview the defendant or anyone else
regarding potential mitigating evidence fell below minimum
standards of professional competence and emphasizing that
the reliability of a death sentence depends heavily on the
consideration of the defendant’s individual character and
circumstances.); Carter v. Bell, 218 F.3d 581, 596 (6" Cir.
2000) (“The sole source of mitigating factors cannot properly
be that information which defendant may volunteer; counsel
must make some effort at independent investigation in order
to make a reasoned, informed decision as to their utility.”);
1]
Jackson v. Calderon, 211 F.3d 1148 (9" Cir. 2000) (finding
ineffective assistance of counsel when the defendant’s lawyer
made no attempt to investigate the defendant’s childhood,
made no attempt to convey the conditions of defendant’s
childhood to the jury and failed to present any medical
evidence, despite being aware that such evidence would show
that defendant was under the influence of PCP at the time of
the crime, and his sole preparation for the penalty phase
consisted of an interview with the defendant’s mother and his
estranged wife, and a cursory examination of the defendant’s
juvenile and medical records).
In Wiggins, this Court considered the circumstances
under which counsel might, consistent with his or her
constitutional responsibilities, decide to limit investigation
regarding possible mitigating evidence. There, trial counsel’s
investigation of Wiggins’ social history consisted of a review
of a presentence investigation report and certain social
services records as well as retaining a psychologist to perform
an evaluation of Wiggins’ mental functioning. Counsel failed
to uncover evidence of a significant history of very severe
physical and emotional abuse as well as_ borderline
retardation. The Court held that the limited investigation
conducted by counsel constituted a failure to discover all
reasonably available mitigating evidence. 123 S. Ct. at 2537.
Moreover, the Court found the content of the social services
records that counsel did review should have caused counsel_to
investigate further and that counsel’s failure to follow-up on
this evidence was unreasonable, stating that “any reasonably
competent attorney would have realized that pursuing these
leads was necessary to making an informed choice among
possible defenses.” Jd. Further, the Court noted:
In assessing the reasonableness of an
attorney’s investigation, however, a court
must consider not only the quantum of
evidence already known to counsel, but also
whether the known evidence would lead a
reasonable attorney to investigate further.
Even assuming [trial counsel] limited the
scope of their investigation for strategic
reasons, Strickland does fot establish a
cursory investigation automatically justifies
a tactical decision with respect to sentencing
Strategy. Rather, a reviewing court must
consider the reasonableness of the
investigation said to support that strategy.
Id. at 2538. Accordingly, “[a] decision not to investigate thus
‘must be directly assessed for reasonableness in all the
circumstances.” Jd. at 2541, quoting Strickland, 466 U.S. at
691, 104 S. Ct. at 2052.
Here, there was ample evidence that should have put
counsel on notice of the need to investigate. First, Mr.
Miniel’s trial counsel, in his affidavit submitted in opposition
to Mr. Miniel’s petition, observed, regarding Mr. Miniel’s
family members, that there was “a certain warmth missing in
their feelings” for Mr. Miniel and that he was not certain
whether Mr. Miniel’s family would ask the jury to spare Mr.
Miniel’s life. Such observations should, by themselves, have
been a red_flag that something was seriously amiss in
Mr. Miniel’s family history. Even the very brief
conversations that trial counsel now acknowledges having
with Mr. Miniel’s family should have led him to investigate
further. Notwithstanding what should have been very
troubling comments by Mr. Miniel’s family, counsel states
that he cannot now recall whether he ever asked about the
possibility that Mr. Miniel had suffered abuse as a child.
Further, counsel should also have been aware, based
on the State’s competency opinion, if not from information
- from his own client, that Mr. Miniel had a history of heavy
13
drug and alcohol abuse. Counsel was also aware that
Mr. Miniel was using drugs and alcohol on the night of the
crime. These facts should have led counsel to investigate
further to determine the extent to which Mr. Miniel’s history
of drug and alcohol abuse might be presented as mitigating
evidence.
Neither counsel’s own untrained observations
concerning Mr. Miniel’s mental state nor the competency
examination by the State’s expert, Dr. Brown, can be
reasonably relied upon to excuse trial counsel’s failure to
investigate. Counsel, although he claims that he “never
suspected that Miniel suffered from any mental health
problems or mental retardation,” does not claim that he has
any training or expertise that would qualify him to make such
a judgment. Such uninformed, off-the-cuff assessments
plainly cannot substitute for investigation. Nor does Dr.
Brown’s evaluation excuse the failure to investigate. The
purpose of Dr. Brown’s examination of Mr. Miniel was to
determine Mr. Miniel’s competence to stand trial. The
purpose of that examination plainly was not to assist defense
counsel in developing mitigating evidence. To the extent that
trial counsel relied on Dr. Brown’s report in planning his trial
strategy, such reliance was manifestly unreasonable and
inconsistent with appropriate professional judgment.
Il. IN LIMITING THE PREJUDICE ANALYSIS
APPLIED IN WIGGINS AND WILLIAMS TO
THE SPECIFIC FACTS IN THOSE CASES, THE
LOWER COURT FAILED TO CONSIDER
WHETHER THERE WAS A REASONABLE
PROBABILITY THAT THE OMITTED
MITIGATING EVIDENCE, TOGETHER WITH
THE MITIGATING EVIDENCE THAT WAS
PRESENTED, WOULD HAVE CAUSED ONE
JUROR TO ANSWER ONE OF THE TWO
SPECIAL ISSUE QUESTIONS IN THE
NEGATIVE
In order to show that counsel’s. professionally
unreasonable conduct resulted in prejudice, for purposes of
the second prong of the Strickland analysis, the 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.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” /d. Here, one “no” vote by one
juror to either of the two special issue questions would have
changed the outcome from death to life. Thus, the proper
prejudice analysis for a claim of ineffective assistance of
counsel arising from the failure to investigate and present
mitigating evidence asks whether there is a reasonable
probability that the omitted evidence, together with the
evidence that was presented, would have caused one juror to
change his or her vote on one of the special issue questions.
This is the analysis that this Court’s precedents require and
this is the analysis that the Fifth Circuit failed to apply.
In Williams and, just last term, in Wiggins, this Court
addressed the proper application of the Strickland prejudice
analysis, concluding, in both cases, that counsel’s failure to
investigate and present evidence of a history of child abuse
15
and impaired mental functioning resulted in prejudice. The
evidence supporting Mr. Miniel’s ineffective assistance of
counsel claim makes this case materially indistinguishable
from Williams and Wiggins. Here, as in Williams and
Wiggins, the jury heard nothing of Mr. Miniel’s
circumstances prior to his participation in the crime. Here, as
in Williams and Wiggins, counsel failed to investigate and
present evidence of a disadvantaged background beyond Mr.
Miniel’s control, including physical abuse and limited mental
functioning. Here, as in Williams and Wiggins, the omitted
mitigating evidence tells a powerful story that would have
humanized Mr. Miniel before the jury and diminished his
culpability. Cf Penry v. Lynaugh, 492 U.S. 302,319, 109 S.
Ct. 2934 (“‘[E]vidence about the defendant’s background and
character is relevant because of the belief, long held by this
society, that defendants who commit criminal acts that are
attributable to a disadvantaged background may be less
culpable than defendants who have no such excuse.’”); see
also, Skipper v. South Carolina, 476 U.S. 1, 13, 106 S.Ct.
1669 (1986) (Powell, J., joined by Burger, C.J., and
Rehnquist, J., concurring) (“[s]ociety’s legitimate desire for
retribution is less strong with respect to defendants who have
reduced capacity for considered choice{;]... [e}vidence
concerning the defendant’s emotional history thus bear(s]
directly on the fundamental justice of imposing capital
punishment.”); Frazier v. Huffman, 343 F.3d 780, 798 (6"
Cir. 2003) (applying Strickland and Williams in concluding
that defendant was prejudiced by counsel’s failure to —
investigate and present evidence of defendant’s functional
brain impairment, stating, “Had the jurors been confronted
with the mitigating evidence of Frazier’s brain injury, the
probability that at least one juror would not have decided that
the aggravating circumstances beyond a reasonable doubt ‘is
a probability sufficient to undermine confidence in the
outcome.’”’)
16
In Williams, trial counsel failed to conduct an
investigation that would have uncovered extensive records of
Williams’ “nightmarish childhood,” including evidence that
Williams’ parents had been imprisoned for criminal neglect of
Williams and his siblings and that Williams had been
repeatedly beaten by his father. 529 U.S. at 395. Further,
counsel failed to introduce available evidence that Williams
was “borderline mentally retarded” and had not advanced
beyond sixth grade. Jd. Evidence also showed that Williams
had suffered repeated head injuries and that he might have
had mental impairments that were organic in origin. Id. at
370. :
The Court had little trouble concluding that Williams’
trial counsel’s lack of investigation met the “deficient
performance” prong of the Strickland test. Id. at 395. Turning
to the prejudice prong, the Court emphasized the need to
consider the totality of the evidence — including mitigating
evidence that was introduced and mitigating evidence that
counsel failed to discover — in determining whether there was
_a reasonable probability that the outcome would have been
different. In concluding that Williams was prejudiced by his
trial counsel’s failure to investigate and present mitigating
evidence, the Court observed that, while evidence of
Williams’ confession and remorse for his crime, together with
evidence of Williams’ good behavior in prison “may not have
overcome a finding of future dangerousness, the graphic
description of Williams’ childhood filled with abuse and
privation, or the reality that he was ‘borderline mentally
retarded,’ might well have influenced the jury’s appraisal of
his moral culpability.” Jd. at 398.
In Wiggins, the Court also found that the defendant
had been prejudiced by his trial counsel’s failure to perform a
reasonably competent investigation of mitigating evidence,
stating, “Petitioner thus has the kind of troubled history we
17
ee
ieriesssinesiiliaaaa iciciiiiaieemaaialiaaiaa iain
have declared relevant to assessing a defendant’s moral
culpability.” 123 S. Ct. at 2542, citing Penry v. Lynaugh, 492
U.S. 302, 109 S. Ct. 2934 (1989). As in Williams, the Court
emphasized the need to evaluate prejudice in light of evidence
presented at trial and the evidence adduced in the habeas
proceedings, taken together. Jd. at 2543. Thus, the Court
held:
Wiggins’ sentencing jury had only one
significant mitigating factor — that Wiggins
had no prior convictions. Had the jury been
able to place petitioner’s excruciating life
history on the mitigating side of the scale,
there is a reasonable probability that at least
one juror would have struck a different
balance.
Id.
The Fifth Circuit’s decision inappropriately limits
both Wiggins and Williams to their specific facts by
characterizing Mr. Miniel’s mitigating evidence as “mild”
when compared with the social history evidence presented in
those cases. This, however, is not the proper comparison.
Instead, the weight of the additional mitigating evidence (and
the prejudice arising from trial counsel’s failure to discover
and offer it), must be determined in light of the other
punishment and mitigation evidence in this case. The
question, under Williams and Wiggins, is not whether the
mitigating evidence is “better” or “worse” than the specific
facts of those cases. Rather, the question is whether the
available mitigating evidence, taken as a whole, “might well
have influenced the jury’s appraisal” of Mr. Miniel’s moral
culpability in light of the totality of the evidence. 123 S. Ct.
at 2544. The lower court never addressed this question
because it chose, instead, to read Williams and Wiggins so
narrowly as to be limited to their specific facts.
18
; 7
The lower court concluded that the State’s punishment
phase evidence, consisting of Mr. Miniel’s criminal record
and the circumstances of the crime itself would have
overwhelmed any mitigating evidence that Mr. Miniel could
have offered. The Court rejected similar reasoning in
Williams, where, unlike this case, the defendant had an
extensive record of violent conduct. See 529 U.S. at 418
(Rehnquist, C.J., dissenting) (noting that Williams had
savagely beaten an elderly woman, stolen two cars, set fire to
a home, stabbed a man during a robbery and confessed to
choking two inmates and breaking a fellow prisoner’s jaw).
The Williams Court found prejudice even in the face of this
violent history.
Here, Mr. Miniel’s criminal history does not reflect
anything near this degree of violence. Mr. Miniel’s criminal
record, which the State presented in support of its death case,
consisted of a misdemeanor convictions for retail theft and
disorderly conduct, a guilty plea to an aggravated battery in
connection with an altercation with a girlfriend, revocation of
probation on a misdemeanor charge of unlawful use of
weapons, based on his guilty plea to aggravated battery, and a
subsequent unadjudicated charge of aggravated battery, again
relating to an altercation with his girlfriend.
Further, the Fifth Circuit repeats the mistake of the
court of appeals in Williams of failing to weigh the mitigating
evidence that was omitted together with the evidence that was
presented — which established Mr. Miniel’s good behavior
and religious conversion since his incarceration. The Court in
Williams reasoned that, while evidence that was presented at
trial concerning Williams’ remorse and good behavior in
prison may not have overcome a finding of future
dangerousness, that evidence, together with “the graphic
description of Williams’ childhood filled with abuse and
privation, or the reality that he was ‘borderline mentally
19
ne
retarded,’ might well have influenced the jury’s appraisal of
his moral culpability.” Jd. at 398. This same reasoning
applies here.
Moreover, trial counsel’s failure to conduct an
investigation of Mr. Miniel’s social history was prejudicial in
still another way. The Fifth Circuit concluded that trial
counsel’s failure to obtain an expert evaluation of Mr. Miniel
did not constitute deficient performance because trial counsel
was not sufficiently “on notice” of Mr. Miniel’s condition.
However, had trial counsel performed an investigation of Mr.
Miniel’s social history, counsel would have learned that Mr.
Miniel had suffered severe beatings and neglect as a child,
that he began abusing drugs and alcohol at a very early age,
that he had had difficulty in school, and that he had suffered a
number of serious head injuries. These facts would have, at
the least, spurred a reasonable attorney to retain an expert in
order to evaluate the effects of Mr. Miniel’s history on his
mental functioning. Significantly, even the constitutionally
deficient investigation in Wiggins included an evaluation by a
psychologist.
Had this occurred, Mr. Miniel’s jury would have been
presented with a picture of Mr. Miniel as a whole person, in a
way that would likely have caused it to hold him less
responsible for his crime. Thus, the jury would have heard
evidence of an extremely traumatic childhood that was not
just tragic but that caused damage to Mr. Miniel’s brain
which in turn, limited Mr. Miniel’s “ability to use good
judgment, to reason and to inhibit impulsive behaviors.” This
evidence, together with ihe mitigating evidence that was
presented, of Mr. Miniel’s good behavior and religiousness
while in jail, would have provided the jury with context that
would enabled it to answer in the negative as to either the
“deliberateness” of Mr. Miniel’s crime or his future
dangerousness.
20
Ill, THE FIFTH CIRCUIT ERRED IN_ ITS
APPLICATION OF THIS COURT’S DECISION
IN PENRY
In addition to his ineffective assistance of counsel
claim, Mr. Miniel also sought COA on the ground that the
special issues in effect in Texas at the time of his trial
unconstitutionally deprived him of the opportunity to have the
jury consider and give weight to mitigating evidence, contrary
to this Court’s decisions in Penry v. Lynaugh, 492 U:S. 302
(1989) (“Penry I’), and Penry v. Johnson, 532 U.S. 782
(2001) (“Penry IT’). In rejecting Mr. Miniel’s claim, the Fifth
Circuit stated that, “The Court [in Penry I/] did not indicated
that we have misinterpreted what constitutes Penry evidence.”
Pet. App. A-7. This Court has recently granted cert in two
cases, Smith v. Dretke, No. 02-11309, and Tennard v. Dretke,
02-10038, in which the Court will review whether the Fifth
Circuit has correctly applied Penry IJ and Penry IJ. Mr.
Miniel respectfully urges the Court to delay any
determination in this case pending a decision in those cases.
IV. THE FIFTH CIRCUIT’S DENIAL OF COA
DESPITE SIGNIFICANT EVIDENCE
SUPPORTING MR. MINIEL’S CLAIM
REPRESENTED AN UNREASONABLE
APPLICATION OF THIS CORRECT
STANDARD ARTICULATED BY THIS COURT
IN MILLER-EL
The relevant inquiry, for purposes of determining
whether to grant COA with respect to a claim, is whether
jurists of reason would find the district court’s determination
of the claim debatable or wrong. Miller-El v. Cockrell, 537
U.S. 322, 123 S. Ct. 1029 (2003). This is emphatically not
the same as determining whether the petitioner is likely to
ultimately prevail on the merits. Indeed, the Miller-E] Court
21
stated, “We do not require petitioner to prove, before the
issuance of a COA, that some jurists would grant the petition
for habeas corpus. Indeed, 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.” 123 S. Ct. at 1040. Thus, reading
Wiggins and Miller-El together, the question presented by this
case is whether, taking the totality of the punishment
evidence, including the evidence adduced at trial and the
evidence presented in post conviction proceedings, there is a
reasonable likelihood that one juror would have answered one
of the special issue questions in the negative.
Further, the Miller-El] Court clarified the applicable
evidentiary standard used to determine whether the necessary
threshold has been met. Noting that “[e]ven in the context of
federal habeas, deference does not imply abandonment or
abdication of judicial review,” the Court stated:
In the context of the threshold examination
in this Batson claim the issuance of a COA
can be supported by any evidence
demonstrating that, despite the neutral
explanation of the prosecution, the
peremptory strikes in the final analysis were
race based. . . . Only after a COA is granted
will a reviewing court determine whether the
trial court’s determination of the
prosecutor’s neutrality with respect to race
was objectively unreasonable and has been
rebutted by clear and convincing evidence to
the contrary.
123 S. Ct. at 1041 (emphasis added). The lower court,
although paying lip service to Miller-E:, failed to apply it.
22
The evidence presented in support of Mr. Miniel’s petition
meets, at the least, this threshold.
CONCLUSION
On the basis of the foregoing arguments and
authorities, Peter J; Miniel respectfully requests that his
petition for writ of certiorari be granted.
Dated: November 17, 2003.
Gregory R. Merz
Counsel of Record
Gray, Plant, Mooty, Mooty
& Bennett, P.A.
3400 City Center
33 South Sixth Street
Minneapolis, Minnesota 55402
(612) 334-2800
(612) 333-0066 (fax)
Attorney for Petitioner,
Peter J. Miniel
23
APPENDIX
Peter J. Miniel v. Janie Cockerell,
Director, Texas Department of Criminal Justice,
Institutional Division, No. 02-20097 as Cir. July
17, 2003)
Peter J. Miniel v. Janie Cockerell, Director,
Texas Department of Criminal Justice,
Institutional Division, No. 02-20097 ‘on Cir. August
18, 2003)
28 U.S.C. § 2253
28 U.S.C. § 2254
Ex parte Miniel, No. 42833-01,
per curiam order (Texas Court of Criminal Appeals)
Peter J. Miniel v. Janie Cockerell,
Civil Action NO. H-00-4361,
Memorandum and Order (S.D. Tex.)
Ex parte Miniel, No. 4500033-A,
Findings of Fact, Conclusions of Law and Order
(337" District Court, Harris County, Texas)
Confidential Neuropsychological and
Psychological Evaluation of Peter Miniel
Affidavit of Maria Juana Miniel
Affidavit of Mary Margaret Miniel
Affidavit of John P. Miniel
Affidavit of Maria Secoro LeBlanc
A-i
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A-29
A-31
A-32
A-33
A-35
A-69
A-97
A-113
A-129
A-134
A-139
a a
Affidavit of Jessie Miniel A-145
Affidavit of Fred M. Heacock A-152
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20097
PETER J. MINIEL,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, DAVIS and CLEMENT, Circuit Judges.
W. EUGENE DAVIS:
Petitioner, Peter J. Miniel (Miniel), was convicted of
capital murder in Texas and sentenced to death. He now
seeks a Certificate of Appealability (COA) pursuant to 28
U.S.C. § 2253(c)(2) from the district court's denial of relief
A-]
under 28 U.S.C. § 2254 on the following claims: (1) the jury
was precluded from considering mitigating evidence during
sentencing; (2) he was denied the right to trial by an impartial
jury; and (3) counsel rendered ineffective assistance by
failing to conduct a pretrial investigation and present
mitigating evidence during sentencing. For the reasons that
follow, we deny COA on Miniel's claims.
I. BACKGROUND.
On October 7, 1998, Miniel was convicted of the
felony murder of Paul Manier (Manier).
After arriving at Manier's house to procure marijuana,
Miniel concocted a plan to rob him. Miniel's co-defendant,
James Warren Russell, Jr. (Russell), distracted Manier by
telling him he was going to get cocaine. Manier cleaned a
small mirror to use to snort the cocaine. When Manier leaned
over the mirror, Miniel struck him on the back of the head
with a beer mug. Miniel continued to stnke Manier until he
fell to the ground. When Russell returned, he joined Miniel
and struck Manier several times with a shock absorber that
was nearby. Dissatisfied with Russell's efforts, Miniel took
the shock absorber and began striking Manier with it. When
Miniel could not knock out Manier, he stabbed Manier
several times with a small knife. After this proved ineffective,
Miniel attempted to slit his throat while Russell held him.
Finally, Miniel attempted to asphyxiate Manier by shoving a
blanket down his throat.
After the murder, Miniel became angry when he
realized that he had killed Manier for only twenty dollars.
Miniel and Russell searched the apartment for drugs or
money but all they could find to steal was stereo equipment.
They washed off Manier's blood and hid the knife.
Afterwards, Minie] and Russell went to Burger King to eat
hamburgers.
A-2
A jury convicted Miniel of capital murder.On October
12, 1988, the jury returned affirmative answers on two special
issues required for imposition of the death penalty under
Texas law, and the trial court sentenced Miniel to death.
Miniel appealed his conviction to the Texas Court of
Criminal Appeals which affirmed his conviction and
sentence. Miniel v. State, 831 S.W.2d 310 (Tex. Crim. App.
1992). The United States Supreme Court denied his
application for a writ of certiorari. Miniel v. Texas, 506 U.S.
885, 113 S.Ct. 245 (1992). Thereafter, Miniel sought post-
conviction relief in state court, filing a petition for a writ of
habeas corpus in 1993 and an amended petition in 1996.
Judge Larry Fuller, who was not the trial judge, presided over
this proceeding. The state filed its answer in March 1999.
Both sides filed affidavits, and without conducting an
evidentiary hearing, the state district court requested that the
parties submit proposed findings of fact and conclusions of
law. The state district court adopted the State's proposed
findings of facts and conclusions of law and denied relief.
The Texas Court of Criminal Appeals adopted this order in
December 1999.
Thereafter, Miniel sought post-conviction relief in
federal district court pursuant to 28 § U.S.C. 2254. The
district court granted the State's motion for summary
judgment in October 2001. The district court denied Miniel's
motion to alter or amend the judgment. The district court also
denied Miniel's request fora COA. Miniel now seeks a COA
from this court.
Il. STANDARD OF REVIEW.
Miniel filed the instant Section 2254 application for
habeas relief after the April 24, 1996 effective date of the
Antiterrorism and Effective Death Penalty Act (AEDPA).
A-3
His application is therefore subject to the AEDPA. Lindh v.
Murphy, 521 U.S. 320, 336,117 S.Ct. 2059, 2068 (1997).
Under the AEDPA, an appeal may not be taken to this
court unless the petitioner first obtains a COA. 28 U.S.C. §
2253(c)(2). "This is a jurisdictional prerequisite because the
COA statute mandates that ‘[u]nless a circuit justice or judge
issues a certificate of appealability, an appeal may not be
taken to the court of appeals. ... " Miller-El v. Cockrell,123
S.Ct.1029,1039 (2003) (citing 28 U.S.C. §2253(c)(1)) . "The
COA statute requires a threshold inquiry into whether the
circuit court may entertain an appeal." /d. (citing Slack v.
McDaniel, 529 U.S. 473, 482 (2000); Hohn v. United States,
524 U.S. 236, 248 (1998)). A COA will be granted only if
the petitioner makes "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). To make such a
showing, a petitioner "must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve
the issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed further."
Barefoot v. Estelle, 463 U.S. 880, 893 n. 4,103 S.Ct. 3383,
3394 n. 4 (1983) (citation and internal quotation marks
omitted). Any doubt regarding whether to grant a COA is
resolved in favor of the petitioner, and the severity of the
penalty may be considered in making this determination.
Fuller v. Johnson, 114 F.3d 491, 495 (Sth Cir.1997).
The analysis "requires an overview of the claims in the
habeas petition and a general assessment of their merit."
Miller-El v. Cockrell,123 S.Ct.1029,1039. We must look to
the district court's application of AEDPA to the petitioner's
constitutional claims and determine whether the court's
resolution was debatable among reasonable jurists. /d. "This
threshold inquiry does not require full consideration of the
factual or legal bases adduced in support of the claims." Jd.
Rather, "'[t]he petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
A-4
eee ee
constitutional claims debatable or wrong." Id. at 1040. (citing
Slack v. McDaniel, 529 U.S. 473, 484).
In making this assessment, we must be mindful of the
deferential standard of review the district court applied to
Miniel's claims as required by AEDPA. Hill v. Johnson, 210
F.3d 481, 48485 (Sth Cir. 2000). Section 2254(d) requires a
federal district court to give deference to determinations by a
state habeas court that adjudicated the petition on the merits.
See Hill v. Johnson, 210 F.3d 481, 484-85 (Sth Cir. 2000).
Pursuant to 28 U.S.C. § 2254(d), the district court defers to a
state court's adjudication of a petitioner's claims on the merits
unless the state court's decision was: (1) "contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States;" or (2) "resulted in a decision that was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” A state
court's decision is deemed contrary to clearly established
federal law if it reaches a legal conclusion in direct conflict
with a prior decision of the Supreme Court or if it reaches a
different conclusion than the Supreme Court based on
materially indistinguishable facts. Williams v. Taylor, 529
U.S. 362,120 S.Ct.1495,1519-20 (2000). A state court's
decision constitutes an unreasonable application of clearly
established federal law if it is objectively unreasonable. Id. at
1521.
Ill. © MITIGATING EVIDENCE.
A. Denial of Mitigating Evidence Instruction
Miniel argues that the state court denied a jury
instruction with respect to the following mitigating evidence
in violation of the Eighth Amendment: his drug and alcohol
use at the time of the offense; his youth (age 23); his good
A-5
SN
behavior while incarcerated; and his religious conversion. !
Finding Miniel's claim precluded by precedent, we deny a
COA.
In Penry I, the Supreme Court reversed a death
sentence on the ground that, although the evidence regarding
the defendant's mental retardation and childhood abuse was
presented to the jury at the penalty phase of the trial, the
special issues prescribed by Texas statute prevented the jury
from giving mitigating effect to that evidence. Penry v.
Lynaugh, 492 U.S. 302, 328,109 S.Ct. 2934, 2952 (1989).
Since the holding in Penry, federal courts have had the
opportunity to determine whether the special issues provided
a vehicle for considering numerous types of mitigating
evidence.
As in the instant case, the petitioner in Tucker v.
Johnson, 115 F.3d 276, 281(Sth Cir.1997), argued that the
jury was prevented from considering the mitigating evidence
of her intoxication at the time of the offense and her age,
twenty-three. We rejected that claim and found that the
petitioner had failed to make a substantial showing of the
' Miniel also argues that the jury could not adequately
consider the "mitigating" evidence of his co-defendant's lesser
sentence. The Supreme Court has explained that mitigating
evidence involves any aspect of the defendant's character or
record and a circumstance of his offense. See Eddings v.
Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874 (1982). A
co-defendant's lesser sentence does not constitute a mitigating
factor as defined by the Supreme Court. Cf. United States v.
Ives, 984 F.2d 649, 650 (Sth Cir.1993) (relying on the
Supreme Court's capital jurisprudence, we have concluded
that substantially lesser sentences received by a defendant's |
coconspirators did not constitute a mitigating circumstance
that might warrant downward departure from guidelines
sentence).
A-6
CE ESS a ae ae a
denial of a federal right. Id. at 281-82. More specifically, a
jury can give "full effect" to evidence of voluntary
intoxication in its determination whether the defendant acted
deliberately, which is contained in the first special issue.
Lackey v. Scott, 28 F.3d 486, 489 (5th Cin 1994). The second
special issue with respect to future dangerousness affords the
jury an adequate vehicle to consider the defendant's youth.
Johnson v. Texas, 509 U.S. 350, 370,113 S.Ct. 2658, 2670
(1993).
With respect to the evidence of Miniel's good behavior
while incarcerated, the Supreme Court has explained that no
special instruction is necessary to enable the jury to consider
the mitigating effect of the petitioner's evidence regarding his
good prison disciplinary record. See Franklin v. Lynaugh,
487 U.S. 164, 108 S.Ct. 2320, 2329-30 (1988). Finally, with
respect to Miniel's religious conversion, this Court has held
that the second special issue would allow the jury to give
effect to mitigating evidence that a petitioner had "rededicated
his life to God." Jernigan v. Collins, 980 F.2d 292, 295 (Sth
Cir.1992).
Accordingly, Miniel's claim that he was entitled to an
instruction to allow the jury to give effect to his mitigating
evidence is precluded by precedent. The Supreme Court's
decision in Penry II does not indicate otherwise. Penry v.
Johnson 121 S.Ct.1910 (2001). In Penry IJ, the Supreme
Court found a supplemental jury instruction with respect to
mitigating evidence to be "ineffective and illogical." Id. at
1924. Thus, the Court reached the same conclusion it had
reached in Penry J: "[A] reasonable juror could well have
believed that there was no vehicle for expressing the view that
Penry did not deserve to be sentenced to death based upon his
mitigating evidence." Jd. The Court did not indicate that we
have misinterpreted what constitutes Penry evidence.
A-7
vv
We are therefore satisfied no reasonable jurist would
find debatable the district court's resolution of Miniel's Penry
IT claim. Accordingly, we deny COA as to this claim.
B. Mitigating Evidence Not Before the Jury
Miniel also contends that the special issues effectively
precluded the introduction of certain other mitigating
evidence including: emotional trauma resulting from the
circumstances in which he learned of his adoption; his
alcoholic father; a long history of severe abuse as a child; a
history of drug and alcohol abuse; a pattern of suicide
attempts and substance abuse that affected virtually every
member of his immediate family; and evidence of impairment
of his mental, academic, social, and behavioral functioning.
Miniel contends that without a proper instruction the jury
would have had no vehicle through which to give effect to the
mitigating weight of this evidence. This Court, however, has
repeatedly rejected the claim that the "Texas statutory capital
sentencing scheme is . invalid as preventing or chilling
defense counsel's development of mitigating evidence.”
Briddle v. Scott, 63 F.3d 364, 378 (Sth Cir.1995); Crank v.
Collins, 19 F.3d 172,176 (Sth Cir.1994); Black v. Collins, 962
F.2d 394, 407 (Sth Cir. 1992); May v. Collins, 948 F.2d
162,166-68 (Sth Cir.1991). Further, we have held that a
"petitioner cannot base a Penry claim on evidence that could
have been but was not proffered at trial." Boyd v. Johnson,
167 F.3d 907, 912 (Sth th Cir. 1999) (citing West v. Johnson,
92 F.3d 1385, 1405 (Sth Cir.1996)). We are constrained to
find that Mintel has not made a substantial showing of a
constitutional right with respect to his Penry claim.
IV. DENIAL OF IMPARTIAL JURY.
Miniel also argues that he was denied his Sixth
Amendment right to an impartial jury. The Sixth Amendment
right to a fair trial includes the nght to an impartial jury.
A-8
Morgan v. Illinois, 504 U.S. 719, 727,112 S.Ct. 2222 (1992).
In a capital sentencing context, a defendant has the right to
challenge for cause a juror whose views on capital
punishment would "prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath." Wainwright v. Witt, 469 U.S. 412,
424,105 S.Ct. 844, 852 (1985). A state trial court's refusal of a
petitioner's challenge for cause is a factual finding entitled to
a presumption of correctness. Jones v. Butler, 864 F.2d 348,
362 (Sth Cir.1988). Here, the state habeas court "found based
on a review of the trial record that the trial court did not err in
failing to excuse venire person Patrick O'Rourke for cause
because he clearly demonstrated that he understood the legal
definitions, was fully capable of following the law, and fairly
and impartially answering the punishment issues."
The juror in question, Patrick O'Rourke, had an MBA
from the University of Houston and was a comptroller for a
corporation. Miniel argues that O'Rourke expressed such an
extreme bias in favor of the prosecution and the death penalty
that it disqualified him from being seated as an impartial
juror. In support of this argument, Miniel quotes several
statements O'Rourke made while being examined during voir
dire. First, Miniel asserts that O'Rourke demonstrated his bias
by expressing the view that he would not worry about
whether the death penalty was right or wrong in a particular
case because the decision to execute a convicted defendant is
"more or less a mechanical process." During voir dire, in
response to the prosecutor's question whether it would
"bother" him to be limited to only two choices of punishment
(life or death sentence), O'Rourke responded as follows:
No. I mean what it is what it is. I don't - at that
point it's not the point to be worrying about,
whether or not it's right or wrong. It probably is
good. Like I said, it's become more or less a
mechanical process that you make these decisions.
A-9
And this is the result of those decisions: more or
less yes-or-no-type.
We do not read O'Rourke's use of the phrase "more or
less mechanical process" as evidencing bias. Instead, we
understand O'Rourke's use of the phrase "more or less a
mechanical process" as describing the Texas procedure that
determines whether a life sentence or death sentence is
imposed. The prosecutor explained that, under the statutory
scheme, if the issues are answered affirmatively the defendant
will be sentenced to death. If there is a negative answer to
either question the defendant will be sentenced to life
imprisonment. We note that the prosecutor informed
O'Rourke that if the jury answered the special answers "yes,"
an "automatic death verdict" resulted. Webster's Dictionary
provides that the word "automatic" is a synonym for
"mechanical."* Clearly, the jurors’ answers to the special
issues "automatically" determine the sentence imposed.
Accordingly, we are not persuaded that O'Rourke's use of the
phrase "more or less mechanical process" when describing the
statutory scheme gives rise to debate regarding potential bias.
Miniel also points to various other statements made by
O'Rourke during voir dire in support of his claim of bias,
including the following: (1) he believed that because the
"justice system is just all drawn-out" and that "if you speeded
up the process, a few innocent might die; but society, as
whole, might be better off; (2) his "personal feelings [are]
that we're probably a little too lenient ... [and] society has
pretty much reined [in] its use";. (3) he did not feel "inclined"
to mitigate punishment’ and thought that "society has the
? WEBSTER'S NEW RIVERSIDE UNIVERSITY
DICTIONARY(1984).
* We note that on the juror questionnaire O'Rourke disagreed
with the following statement as an absolute: "A person is
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obligation to remove persons who are a danger to society as a
whole."
After reading the record, it is clear that O'Rourke held
a strong personal preference for the death penalty as a
punishment for those convicted of capital murder.‘
Nonetheless, O'Rourke's answers also indicated that he
understood the difference between his "personal feelings" and
what Texas law provided.* Under these circumstances, Miniel
did not rebut with clear and convincing evidence the state
court's finding that O'Rourke "was fully capable of following
the law and fairly and impartially answering the punishment
issues." Accordingly, the district court's judgment denying
this claim is not debatable or wrong.
Miniel further contends that O'Rourke should have
been excused for cause because he could not distinguish
between the term "intentional," which pertains to the mental
state at issue during the guilt-innocence phase and the term
"deliberate," which is contained in the first special issue at the
punishment phase. The State does not dispute that a
prospective juror should be excused if unable to distinguish
between those two terms. This Court has noted that Texas law
makes "'a distinction between intentional and deliberate
always responsible for his or her acts, and there can be no
circumstances that could mitigate his responsibility.”
* During voir dire, the prosecutor asked O'Rourke to rate
himself on a scale from 1 to 5 regarding his attitude toward
capital punishment (the number 1 indicating totally opposed
to the death penalty and the number 5 indicating strongly in
favor of capital punishment as an appropriate penalty).
O'Rourke said he would "be more towards the 4 to 5 range."
° O'Rourke stated that he understood that "the laws are laid
down. You kind of have to operate within the laws."
A-1]
ee
conduct; deliberate conduct is something more _ than
intentional, but less than premeditation. [The Texas Court of
Criminal Appeals has] repeatedly recognized that a venire
person who cannot distinguish between intentional and
deliberate conduct is impaired in his ability to consider the
first special issue, and is challengeable for cause."' Green v.
Johnson, 160 F.3d 1029, 1037 (Sth Cir.1998) (quoting Soria
v. State, 933 S.W.2d 46, 60-61 (Tex. Crim. App. 1996))
(internal citation omitted). Nonetheless, Texas law does not
require that venire persons find a "distinct" difference
between the terms "intentional" and "deliberate." Goff v.
State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996). Instead,
it "only requires that venire persons find a difference between
the two terms and be able to base their answers on the
evidence presented." Jd.
At the beginning of O'Rourke's voir dire examination,
the trial court asked him if he had any "scruples" against the
death penalty in a "proper case." O'Rourke responded
negatively. The trial court then instructed O'Rourke as
follows:
I'm going to give you a definition of
"intentionally" and "deliberately."
A person acts intentionally, or with intent,
with respect to the nature of his conduct or to a
result of his conduct when it is his conscious
objective or desire to engage in the conduct or
cause the - result.
There's a different interpretation of the
common meaning of "intentionally" and
"deliberate' within the context of capital murder
punishment hearing.
As used in the first Special Issue, the word
"deliberately" has a meaning different and distinct
from the word "intentionally." The word
"deliberately," as used in the first Special Issue,
means a manner of doing an act characterized by
or resulting from careful consideration, a
conscious decision involving a thought process
which embraces more than mere will to engage in
the conduct.
I do want to instruct you that in Texas,
under the capital murder statute, there are several
different types of capital murder offenses ....
The punishment for [capital murder] is life
or death. Those are the only two punishments.
There's a difference between "intentional
murder" - now, for intentional murder the
punishment range is from five years to life. And in
no case for just an ordinary intentional murder can
a person be given [the] death penalty.
Do you understand that? It has to be some
of these plusses. connected, like aggravated rape,
like I mentioned; you understand?
A. [O'Rourke] Okay.
Subsequently, the prosecutor described a hypothetical
capital murder to O'Rourke and inquired whether he
understood the difference between "intentional" and
"deliberate" conduct in that scenario. O'Rourke replied "Not
really." The prosecutor inquired as follows: "I gather if you
A-13
a
believe that he intentionally shot and killed somebody with
the intent of killing, causing a death, you're going to answer
Issue No. | yes; the legal distinction between ‘intent’ and
‘deliberate’ doesn't have a whole lot of meaning to you[?]"
O'Rourke responded that the "more you talk about it, the more
commingled they become. That's what I have to admit."
(emphasis added). O'Rourke also stated that the "words do
start crossing over a lot, yea; so I'd have to say yes." The
prosecutor further inquired: "If you find him guilty, odds are
that Issue 1 is going to be a big yes?" O'Rourke responded
"Odds are, yeah.”
As set forth above, O'Rourke described the two terms
as "crossing over a lot" and becoming "more commingled."
However, these descriptions do not suggest that O'Rourke
found the terms identical; instead, these descriptions suggest
some difference (even if not distinct) between them.
Moreover, his response that the "odds" were that he would
answer yes to the first special issue after finding the conduct
intentional certainly does not indicate that he would do so in
every case.
As previously quoted, the state habeas court found
"based on a review of the trial record that the trial court did
not err in failing to excuse venireperson Patrick O'Rourke for
cause because he clearly demonstrated that he understood the
legal definitions, was fully capable of following the law and
fairly and impartially answering the punishment issues."
Because O'Rourke's responses indicated that he perceived
some difference between the two terms and that he would
base his answers on the evidence presented,° Miniel has not
shown that O'Rourke was excusable for cause under Texas
law. Goff v. State, 931 S.W.2d 537, 548. The district court
was unpersuaded that Miniel has rebutted the state court's
* O'Rourke expressly stated that he would answer the
questions depending on the "facts and circumstances.”
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finding with clear and convincing evidence. Given the
presumption afforded both the trial court and the state habeas
court, we do not believe that the district court's decision was
debatable or wrong. Accordingly, we find that Miniel has not
made a substantial showing of the denial of a constitutional
right with respect to this particular argument, and we deny
COA on this basis.
Finally, Miniel contends that the prosecutor's remarks to
O'Rourke during voir dire minimized the jury's responsibility
for determining a sentence of death in violation of Caldwell v.
Mississippi, 472 U.S. 320, 104 S.Ct. 2633 (1985). Miniel
argues that the prosecutor's remarks regarding the extensive,
lengthy review of a death sentence by the courts would lead a
juror to believe that the responsibility is delegated to the
courts.
In Caldwell, the Supreme Court "conclude[d] that it is
constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to
believe that the responsibility for determining the
appropriateness of the defendant's death rests elsewhere." 472
U.S. 320, 328-29. Subsequently, in Dugger v. Adams, 489
U.S. 401, 407, 109 S.Ct. 1211, 1215 (1989), the Supreme
Court explained that to "establish a Caldwell violation, a
defendant necessarily must show that the remarks to the jury
improperly described the role assigned to the jury by local
law." During Miniel's state habeas proceedings, the trial court
found "no evidence in the record to support [Miniel's]
assertions that the State misstated the law in voir dire or
impermissibly minimized the jury's responsibility for the
death sentence."
To evaluate a Caldwell claim, this Court looks to the
"total trial scene,’ including jury selection, the guilt phase of
trial, and the sentencing hearing, examining both the court's
instructions and counsel's argument to the jury." Montoya v.
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Scott, 65 F.3d 405, 420 (5h Cir.1995) (quoting Sawyer v.
Butler, 881 F.2d 1273,1286-87 (Sth Cir.1989)).
The challenged remarks were made during ~the
following questioning by the prosecutor:
Q.
A.
Do you regard [the death penalty] as a
deterrent to any type of crime?
Well, it certainly prevents reoccurrence.
It substantially impairs the one executed;
I agree. But as to other individuals?
Yeah, in certain - in certain instances; I don't
think it
deters it all the time, because sometimes
it's not a thinking process; but, certainly,
where it is a premedi[t]ated process, I think
it would certainly be a situation. If not,
someone is not thinking ahead very far.
Q. As you know, as you sit here now, if some
other jury in this courthouse rendered a
death verdict today - there are ... two or
three other capital trials going on presently.
You surely know it would take years and
years and years before that sentence was
ever carried out. Jt would go through the
Texas Court of Criminal Appeals and then
the United States Supreme Court and then
back through various State and Federal
courts; and probably fifty judges will look
at that thing before, ten years from today,
they finally come down on one side or the
other and say, "Yeah, you're going to
A-16
execute him" or "No, You're not; retry him
or something else. "
Does it bother you, as a juror, knowing that
whatever decision you make is going to be
like an annuity policy that one day is or is
not going to happen?
. I think it bothers me as a citizen; not
necessarily as a juror.
. How does it bother you as a citizen?
. I think that I think that the justice system is
just all drawnout. If a few - granted, if you
speeded up the process, a few innocent
might die; but society, as a whole, might be
better off.
Q. Did you sincerely believe what you just
said: that even though a few not guilty
might get burned in the process, we
might be better off to go ahead and
speed this thing up?
A. I think it's pretty fundamental to
society. I think if you look back at
history, you have people - you can
trace it all the way back to the French
Revolution, where, . certainly, many
innocents were called, but perhaps the
French people were better off.
(emphasis indicating challenged remarks).
The State argues that the challenged "comments were
clearly designed to gauge whether a potential delay in the
administration of the death penalty would affect O'Rourke's
belief in the deterrent value of capital punishment, and were
not meant to reduce O'Rourke's feelings of responsibility in
assessing a sentence." This court has looked to the "context"
of a prosecutor's remarks in determining a claim of Caldwell
error. See Stringer v. Jackson, 862 F.2d 1108, 1111(5"
Cir.1988), (opining that the petitioner had taken the
prosecutor's comments out of context in that the prosecutor
"was explaining to a juror that the law required that his
questions be precise, not arguing that higher authorities
substituted their discretion for that of the jury on the matter of
punishment"), vacated and remanded on other grounds, 503
U. S. 222,112 S.Ct.1130 (1992). In the case at bar, O'Rourke,
as previously indicated, was a highly ecucated prospective
juror who engaged in some philosophical debate with the
attorneys regarding the death penalty during voir dire As
such, the State's characterization of the context in which the
remarks were made is fair. The district court agreed, finding
this to be a "reasonable reading of the prosecutor's
comments."
Moreover, the challenged remarks were made during
voir dire, "greatly reducing the chance that they had any
effect at all on sentencing." Byrne v. Butler, 845 F.2d 501,
508 (Sth Cir.1988). Indeed, during closing argument at the
sentencing phase, the prosecutor highlighted the jury's
responsibility in determining whether Miniel received a
sentence of death:
thank heavens the juries make these decisions. It's
not right that prosecutors make decisions that
people ever die. You don’t want Governments
going out and saying, "This person should die, and
A-18
this person should." Before anybody should get a
death sentence, they should come to the juries,
come to the people, and say, "Yeah, you have my
permission before the Government ought to do
anything.”
(emphasis added). Similarly, defense counsel stated to the
jury that after closing argument, "you'll be required to answer
these two questions that will determine whether or not this
boy dies or lives in confinement in a society where he will
not, based upon the evidence beyond a reasonable doubt, be a
continuing threat."”
In light of the context of the remarks by the
prosecutor, the proper instructions given by the court at voir
dire and sentencing, the closing arguments at the sentencing
phase highlighting the jury's responsibility, and O'Rourke's
obvious grasp of the sentencing scheme, the statements would
not lessen a juror's sense of responsibility in determining the
answers to the punishment issues.
In view of the deference afforded the trial court's
credibility determination and the presumption accorded the
state habeas court's factual finding under Section 2254(e)(1)
with respect to the failure to excuse a juror for cause,® the
federal habeas court was unpersuaded that Miniel rebutted the
” Counsel also stated that "[nJever, never, never, again, . .
will you have the power over the life of another human being,
as you have now."
* We note that Miniel argues that the trial court abused its
discretion in failing to excuse O'Rourke. The case Miniel cites
for this proposition is a case on direct appeal to this Court.
See United States v. Hall, 152 F.3d 381 (Sth Cir.1998). As
previously set forth, this federal habeas case is controlled by
the standards set forth in AEDPA.
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presumption with clear and convincing evidence. We perceive
nothing in the district court's judgment which would give rise
to a reasonable debate on this issue. Accordingly, we find that
Miniel is not entitled to a COA with respect to this claim.
V. INEFFECTIVE ASSISTANCE OF COUNSEL.
Miniel next argues that trial counsel's failure to
investigate and develop mitigating evidence amounted to
constitutionally ineffective assistance requiring that his
sentence be vacated. Under Miller-El v. Cockrell, supra, we
must conduct a threshold inquiry into the merits of Miniel's
claim to determine whether reasonable jurists would find the
federal habeas court's resolution of this claim debatable or
wrong.
Under Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052 (1984), Miniel was required to prove that tnal
counsel's performance failed to meet generally accepted
standards of competence and that there is a reasonable
probability that the outcome of his case was affected by
counsel's deficient performance. While the court in Strickland
recognized that there is a broad range of professionally
competent conduct in the trial of any case, generally accepted
standards of competence require that counsel conduct an
investigation regarding the accused's background and
character. Williams v. Taylor, 529 U.S. 362,128 S.Ct.1495
(2000). Miniel contends that, had his trial counsel performed
even the most rudimentary investigation, he would have
found ample mitigating evidence to present during the penalty
phase of his trial.’
” See the Supreme Court's recent decision in Wiggins v. Smith,
No. 02-311, 2003 WL 21467222 (2003), where the court
emphasized that counsel had a duty under Strickland to make
a reasonable investigation to uncover mitigating evidence.
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During the penalty phase of Miniel's trial, the State
presented five witnesses, four of whom testified regarding
Miniel's past criminal history in Illinois. The fifth witness was
a police officer from Humble, Texas who testified regarding
Miniel's bad reputation in the community for violence.
Miniel's trial counsel presented three witnesses.The first was
a corrections officer who testified that Miniel had not
presented any disciplinary problems during his incarceration.
The second was a venireperson who had not been selected for
Miniel's jury and who had visited Miniel several times in jail.
The third was an assistant chaplain working at the jail who
testified about Miniel's attendance at church services. None of
Miniel's witnesses knew him before October 1998.
Miniel contends that trial counsel should have had him
examined to determine whether he suffered from a mental or
psychological disorder which would have provided an
additional source of mitigation. In support of his state habeas
petition, Miniel submitted a neuropsychological and
psychological evaluation. Miniel was diagnosed as suffering
from moderate impairment of his mental, cognitive,
academic, social, and behavioral functioning. According to
the evaluation, he has mild to moderate brain damage.
Because of these disorders, Miniel has limited ability to use
good judgment or reason in making his decisions and exhibits
impulsive behaviors. However, nothing in the report or in any
other document submitted by Miniel suggests that counsel —
was or should have been alerted to these problems.
Moreover, Miniel's trial counsel, Mr. Fred Heacock,
explains in his affidavit that Miniel was tested by the State's
psychologist and found to be competent to stand trial and
found to have been competent at the time his crime was
committed. He also states that Miniel was lucid and
conversant during their meetings. Under these circumstances,
there is nothing in the record to suggest that-counsel should
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have been alerted to a potential mental problem. We have
held that counsel is not constitutionally ineffective for
insufficiently investigating a defendant's mental or
psychological condition when there is nothing to put counsel
on notice that such a condition exists. West v. Johnson, 92
F.3d 1385, 1409, n. 46 (Sth Cir.1996). Thus, the district
court's resolution of the issue of whether counsel was
ineffective for failing to investigate and present evidence of
Miniel's mental condition is not debatable or wrong.
Miniel also contends that his deprived and abusive
family history would have also provided a fertile source of
mitigating evidence if his trial counsel had interviewed family
members. In support of this contention in his state habeas
proceeding, Miniel introduced the affidavits (Miuiniel's
Affidavits) of several relatives and friends: Jesse Miniel
(adoptive mother), Manuel Miniel (adoptive father), Maria
Juana Miniel (adoptive sister), John Miniel (adoptive
brother), Maria Secoro Leblanc (adoptive sister), Mary
Margaret Miniel (adoptive sister), Carmen Cantu (biological
mother), Sookie Leblanc (adoptive sister), David Hernandez
(cousin), and Rosa Hunt (friend).
Miniel's Affidavits paint a picture of a rough
childhood. Méiniel's biological mother, Carmen Cantu,
abandoned him when he was only a few days old. He was
adopted by his aunt and uncle, Jesse and Manuel Miniel. He
grew up in a house with six adopiive siblings in Rock Falls,
Illinois, and his parents often fought over his father's drinking
and philandering. They also fought over Manuel's treatment
of Miniel. Manuel frequently beat Miniel from the time he
was very young and some of these beatings were severe. In
addition to the physical abuse, the children suffered from
neglect. Jesse worked at a factory at night, leaving Manuel
alone with the children. Manuel admits that he was an
alcoholic and that he would often go to bars when Jesse was
working. He would sometimes leave his children alone in the
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car outside a bar for hours at a time, even during the harsh
Illinois winters. Other times, he would leave them alone in the
house.
Jesse, Manuel and Mary Margaret spent the month
before Miniel's trial in Houston. They left right after the jury
was selected, purportedly at Miniel's request. In their
affidavits, both Manuel and Jesse state that, while in Houston,
they tried to meet with Miniel's lawyer, Mr. Heacock, but he
was always too busy to see them. Consequently, the only
contact they had with Heacock while in Houston was a short
meeting outside of the courtroom. Jesse notes that during this
brief meeting Heacock simply reassured them that things
were going smoothly. Jesse and Mary Margaret both note that
Heacock never asked any questions about Miniel and never
asked if they were willing to testify on his behalf. Similarly,
Miniel's sister, Mary Juana, states that she called Heacock at
least three times before the trial, left messages each time, but
he never returned her calls. Mary Juana asserts that she
wanted to help in any way she could and wanted to know how
Miniel was doing.
In response, the State submitted the affidavit of Mr.
Heacock. Heacock's statements conflict with Méiniel's
Affidavits. Heacock states that he told Jesse and Mary
Margaret that someone should ask the jury to spare Miniel's
life and that they refused to testify. Heacock states that Mary
Margaret did not testify because she did not want to get
involved. This testimony is in conflict with Mary Margaret's
affidavit in which she states that she was never asked to
testify. It also conflicts with Jesse's affidavit in which she
states that she was never asked to testify. Heacock also
claims that the family left after hearing part of the
prosecution's case, but Jesse and Mary Margaret both assert
that they left right after the jury was selected. Jesse claims
they left because Miniel asked them to do so, while Heacock
suggests that they left because they "had had enough" of the
A-23
’
trial. Heacock also denies that he refused to talk to Miniel's
family. Manuel, Jesse, Mary Margaret and Mary Juana each
claim that they made attempts to contact Heacock and that he
was too busy to make time for them or failed to return their
calls.
In denying Miniel's petition for habeas relief, thr. state
habeas court credited Heacock's statements that he spoke to
Miniel's family members who were present for part of his trial
and that these family members did not want to get involved
and that they did not appear to have warm feelings about
Miniel. The state court also found that none of Miniel's
family members indicated that they would have been
available or willing to testify and that many had not been
present at his trial. Based on these findings, the state habeas
court concluded that Miniel failed‘ to show that there were
witnesses willing to testify or how that testimony would have
benefitted his defense. Thus; the state habeas court ruled that
Miniel failed to establish that counsel was ineffective under
Strickland.
Miniel contends the federal district court erred in
deferring to the state habeas court's findings because the state
habeas judge (who was not the trial judge) made credibility
calls to resolve conflicting affidavits.
We conclude that we need not consider this argument
or any other arguments related to counsel's alleged deficient
performance under Strickland’s first prong. Even if the
witnesses proffered by Miniel by affidavit had testified at trial
about Miniel's abusive background, Miniel has not made a
substantial showing that the jury would have answered the
special issues any differently. Both the state habeas court and
the federal district court determined that Miniel's ineffective
assistance claim fails for a lack of prejudice. Based on our
review, we conclude that jurists of reason could not debate
the correctness of this determination.
A-24
snsicesennnineatiaainiiaiiaiiliiiali ean
During the punishment phase of Miniel's trial the State
introduced evidence of numerous previous offenses
committed by Miniel in Illinois, including aggravated battery
from beating his girlfriend, another charge of aggravated
battery, two unlawful use of weapons charges, a retail theft
charge, and a charge of disorderly conduct. The State also
presented evidence of Miniel's poor parole history and
evidence that Miniel did not have a reputation as a peaceful
and law abiding citizen. Also, the State produced evidence
during the guilt phase that at the time of his arrest Miniel
confronted the police with a shotgun and only dropped his
weapon in response to his sister's pleas.
When we compare Miniel's violent history including
the cruel manner in which he killed Manier with the potential
testimony of his family members that centered on his
childhood abuse and substance abuse, we are satisfied there is
no reasonable probability that the jury would have answered
the special issues in a different manner." As the district court
© Miniel's Affidavits are mild when compared to the
evidence presented by the petitioners in Wiggins v. Smith,
supra, and Williams v. Taylor, supra, in support of their
ineffective assistance of counsel claims.
The petitioner in Wiggins presented evidence that he
was beaten, starved and sexually abused from the time he was
a small child. Wiggins’ mother was a chronic alcoholic who
often left him and his siblings alone at home for days at a
time, forcing them to beg for food or to eat paint chips and
garbage. Wiggins, slip op. at 4. Mrs. Wiggins kept her
kitchen under lock and key and would beat the children when
they broke into it for food to eat. Jd. On one occasion, she
pressed the petitioner's hand against a hot stove burner,
leading to his hospitalization. Jd. Wiggins' psycho-sexual
abuse began when he was still in his mother's home. Mrs.
Wiggins had sex with men while her children slept in the
A-25
same bed. Jd. At the age of six, the petitioner was put in the
foster care system where his physical abuse continued and
sexual abuse began in earnest. He was physically abused by
his first two foster mothers. Jd. His second foster father
repeatedly raped and molested him. /d. The petitioner ran
away from his foster home and began living on the streets at
the age of sixteen. Jd. However, he eventually returned to
foster care where he was again sexually abused. In one
placement, his foster mother's sons allegedly gang raped him
more than once. /d. After leaving the foster care system, the
petitioner entered a Job Corps program. Jd. There, he was
again sexually abuse, this time by his supervisor- Id.
Considering the nature and the extent of abuse, the Court
found that there was a reasonable probability that a jury
would have returned a different verdict. Id. at 23-24.
While Miniel was abused by his father, there is a
paucity of evidence on the frequency or severity of the
beatings. Also, there is no evidence of sexual abuse in his
family or social history. He was not starved as a child, and
Miniel was never shuffled in and out of foster homes.
The petitioner in Williams v. Taylor, supra, also
offered considerably stronger evidence of abuse than Miniel.
Williams presented evidence of physical abuse, mental
retardation, and strong evidence that Williams did not pose a
risk of future dangerousness as long as he was incarcerated.
Williams presented evidence that his parents were imprisoned
for the criminal neglect of him and his siblings. Id. at 395.
Williams’ juvenile records described a specific incident in
which the children were taken from their parents' home and
hospitalized. Id. at 395, n.19. Four of the children were drunk
at the time of their removal. /d. The report describes
Williams' parents' home as "a complete wreck," with human
feces and urine standing in several places throughout the
house and with trash and dirty dishes scattered in the kitchen.
Id. These records also noted that all of the children were dirty,
and none were wearing underpants. /d. Williams’ parents were
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concluded, "Miniel's past violent behavior would overwhelm
any of the proposed mitigating evidence in determining future
dangerousness... Miniel has failed to present “evidence of
so intoxicated that they could not clothe the children so that
they could be taken to the hospital. Jd. There was also
evidence that Williams had been severely and repeatedly
beaten by his father. Id. at 395. After the children were
removed from their parents' home, Williams spent two years
in the foster care system, including one stretch in an abusive
foster home. Jd. The children were returned to their parents
after their release from prison. Jd. Williams was borderline
mentally retarded and did not advance past the sixth grade in
school. Id. at 396. Williams also presented evidence that he
had been a model prisoner during a prior incarceration.
Williams' prison records contained commendations for
helping to break up a prison drug ring and for returning a
prison guard's missing wallet. Jd. Prison officials testified
during his state habeas hearing that Williams was "among the
inmates least likely to act in a violent, dangerous, or
provocative way." Jd. (Internal quotations omitted). A
certified public accountant who frequently visited Williams as
part of the prison ministry program testified that "Williams
‘seemed to thrive in a more regimented and structured
environment." Jd. This is consistent with the opinion of the
State's trial expert that was revealed during Williams' state
habeas proceeding that "if kept in a ‘structured environment,'
[he] would not pose a future danger to society." Id. at 371. |
The mitigating evidence proffered by Miniel is also
mild by compariso:. to that presented by Williams. Miniel
proffered no evidence tending to rebut the State's evidence
that he posed a significant risk of future dangerousness. The
nature and extent of the abuse Miniel experienced was far less
severe than that described in Williams. Moreover, Miniel has
not presented comparable evidence suggesting that retardation
lessened his culpability.
A-27
sufficient quality and force to raise a reasonable probability
that, had it been presented to the jury, a life sentence would
have resulted."" See Andrews v. Collins, 21 F.3d 612, 624 (Sth
Cir.1§94), cert. denied 513 U.S. 1114, (1995); Miniel v.
Cockrell, No. H-00-4361, p.114 (S.D. Tex. filed November
13, 2001).
Based on the strength of the state's case, the state court
determined that trial counsel did not render ineffective
assistance in failing to present mitigating evidence because
Miniel could not show prejudice. The federal habeas court
concluded that the state court's determination of this issue is
not contrary to or an unreasonable application of federal law.
See 28 U.S.C. §2254(4)(1). We find nothing debatable or
wrong with this conclusion.
VI. CONCLUSION.
For the reasons stated above we deny the petitioner's
request for a COA on his claims that: (1) he was denied a jury
instruction with respect to mitigating evidence and that he
was precluded from introducing other mitigating evidence in
violation of the Eighth Amendment; (2) he was denied his
Sixth Amendment right to an impartial jury; and (3) he was
denied his Sixth Amendment right to effective assistance of
counsel.
COA denied.
A-28
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20097
PETER J MINIEL
Petitioner - Appellant
¥.
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
Respondent - Appellee
Appeal from the Unified States District Court for the
Southern District of Texas, Houston
ON PETITION FOR REHEARING EN BANC
(Opinion 7/17/03, 5 Cir., : F .3d )
Before JOLLY, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:
( x ) Treating the Petition for Rehearing En Banc as a
Petition for Panel Rehearing, the Petition for Panel Rehearing
is DENIED. No member of the panel nor judge in regular
active service of the court having requested that the court be
A-29
polled on Rehearing En Banc (FED. R. APP. P. and 5th CTR.
R. 35), the Petition for Rehearing En Banc is DENIED.
( ) Treating the Petition for Rehearing Fin Banc as a
Petition for Pane. Rehearing, the Petition for Panel Rehearing
is DENIED. The court having been polled at the request of
one of the members of the court and a majority of the judges
who are in regular active service not having voted in favor
(FED. R. App. P. and 5th Cir. R. 35), the Petition for
Rehearing En Banc is DENIED.
ENTERED FOR THE COURT
s/__W _ Eugene Davis
Unite States Circuit-Judge
A-30
§ 2253. Appeal
(a) In a habeas corpus proceeding or a proceeding
under section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for the
circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final
order in a proceeding to test the validity of a warrant to
remove to another district or place for commitment or trial a
person charged with a criminal offense against the United
States, or to test the validity of such person's detention
pending removal proceedings.
(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the
court of appeals from -
(A)the final order in a habeas corpus
proceeding in which the detention complained of
arises out of process issued by a State court; or
(B)the final order in a proceeding under
section 2255.
(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a
substantial showing of the denial of a constitutional
right.
(3) The certificate of appealability under
paragraph (1) shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
A-31-
§ 2254. State custody; remedies in Federal courts
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A-32
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
No. 42833-01
EX PARTE PETER, J. MINIEL a/k/a PETER HENRANDEZ :
ON APPLICATION FOR WRIT OF HABEAS CORPUS
FROM HARRIS COUNTY
The order was delivered per curiam
ORDER
This is a post conviction application for writ of habeas
corpus filed pursuant to the provisions of Article 11.07,
VAL.
On October 10, 1988, applicant was convicted of the
offense of capital murder. The jury answered the special
issues submitted pursuaut to Article 37.071, V.A.C.C.P., and
the trial court, accordingly, set punishment at death.
A-33
Se aes Se ae ieee
Par NE Be Stee RE Se ee eon ae
Applicant's conviction was affirmed on direct appeal to this
Court. Miniel v. State, 831 S.w.2d 310 (Tex. Crim. App.),
cert. denied, 502 U.S. 885 (1992).
In the instant case, applicant presents thirty-one
allegations in which he challenges the validity of his
conviction and resulting sentence. The trial court enter
findings of fact and conclusions of law, and recommended
that the relief sought be denied.
This Court has reviewed the record. The trial court's
findings of fact and conclusions of law are supported by the
record. Upon such basis, the relief sought is denied.
IT IS SO ORDERED TIES THE 15TH DAY
OF DECEMBER, 1999.
PER CURIAM
En banc
Do Not Publish
A-34
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PETER J. MINIEL,
Petitioner,
V. CIVIL ACTION NO. H-00-4361
JANIE COCKRELL,
Respondent.
MEMORANDUM AND ORDER
Petitioner, Peter J. Miniel ("Miniel"), pleaded not
guilty to capital murder during the commission of a robbery
in the 337th District Court of Harris County, Texas. A jury
convicted Miniel on October 7, 1988, and,, based on the jury's
answers to Texas’ special issues, the trial court sentenced
Miniel to death on October 17, 1988. On December 14, 2000,
Miniel filed a Petition for Writ of Habeas Corpus in this court
(Docket Entry No. 7). Pending before the court is the Motion
of Respondent, Janie Cockrell (Cockrell), for Summary
Judgment (Docket Entry No. 15). The court will grant
Cockrell's motion and deny Miniel's petition for writ of
habeas corpus.
I. Background
On May 8, 1986, Miniel and James Warren Russell,
Jr., drove to Galveston from Houston. See State of Texas v.
Peter J. Miniel, No. 450033, Trial Record vol. 25, p. 96
(337th Dist. Court, Harris County, Tex., October 5, 1988).
A-35
Miniel and Russell drove around Galveston drinking beer
they purchased with a stolen credit card. See Trans. vol. 25, at
p. 96. While driving by the seawall, they saw two men
rolling a joint of marijuana. See Trans. vol. 25, at pp. 97-98.
Miniel told the two men that he would buy gasoline and beer
for them in exchange for marijuana. See Trans. vol. 25, at p.
98. The two men, Sammy Rogers and Chris Miln, told Miniel
to follow them back to Houston to get some marijuana. See
Trans. vol. 25, at pp. 99-100.
When the group arrived at an apartment in Houston,
Peter Manier was just getting out of the shower. See Trans.
vol. 25, at pp. 100-01. After a while Miniel, Miln, and
Rogers left to find some marijuana and to take Miln home.
See Trans. vol. 26, at p. 102. When Miniel, and Rogers
returned from acquiring marijuana, they all sat around
smoking joints and drinking beer. See Trans. vol. 25, at pp.
102--03. Rogers eventually passed out. See Trans. vol. 25, at
p. 104. Miniel then told Russell that he thought Manier had
money and that they should rob him. See Trans. vol. 25, "at
p. "104. 'Miniel 'concocted a plan 'where Russell would -
pretend to -- - procure some cocaine, distracting Manier so
that they could render him unconscious. See Trans. vol. 25,
at pp. 104-05. Russell went out to his car, pretending to
retrieve cocaine. See Trans. vol. 25, at p. 105. When he
returned, he found Miniel and Manier in Manier's bedroom.
See Trans. vol. 25, at pp. 105-06. Russell saw Manier clean a
small mirror to use in snorting cocaine. See Trans. vol. 25, at
pp. 105-06. While Manier leaned over the mirror, Miniel
struck him in the back of the head with a beer mug. See
Trans. vol. 25, at p. 106. Manier fell to his knees, covering his
head while Miniel continued to strike him. See Trans. vol.
25, at pp. 106-07. After Manier fell on his side, Russell hit
him several times in the head with a shock absorber that had
been sitting on a table. See Trans. vol. 25, at pp. 106-07.
Miniel told Russell that he was not hitting him hard enough
and then used the shock absorber himself. See Trans. vol. 25,
A-36
at pp. 107-08. When Miniel found that he could not knock
out Manier, he told Russell to stab him with a small knife.
See Trans. vol. 25, at p. 108. Russell was unable to calry
through with this order, and Miniel himself stabbed Manier
numerous times. See Trans. vol. 25, at pp. 108-09. Russell
then held Manier while Miniel attempted to slit his throat.
See Trans. vol. 25, at p. 109. Finally, Miniel attempted to
asphyxiate him by shoving a blanket down his throat. See
Trans. vol. 25, at pp. 109-10.
Miniel took Manier's s wallet and became angry when
he discovered that they killed a man for only twenty dollars.
See Trans. vol. 26, at pp. 249, 315. They then searched the
apartment for drugs or money. See Trans. vol. 26, at pp. 249-
50. Miniel and Russell left the apartment, stealing Manier's
stereo equipment. See Trans. vol. 25, at pp. 110-14. They
washed off Manier's blood and hid the knife. See Trans. vol.
25, at pp. 114-15. Miniel and Russell then went to Burger
King to eat hamburgers. See Trans. vol. 25, at pp. 116-17.
Miniel was eventually arrested at his sister's apartment
in Chicago, Illinois. The police recovered some of Manier’s
stereo equipment from another individual in the apartment
building. At a Chicago police department substation, Miniel
made an oral statement confessing to Manier’s murder.
Miniel's trial began before the 337th District Court of -
Harris County on October 5, 1988.' Miniel pleaded not
guilty. See Trans. vol. 25, at p. 15. Miniel did not call any
defense witnesses in the guilt/innocence phase. On October
10, 1988, the jury found Miniel guilty of capital murder. See
Trans. vol. 27, at pp. 511-12.
' Fred M. Heacock and Al Thomas represented Miniel at trial.
For the most part, the court will refer to the attorneys
conjunctively as "trial counsel."
A-37
During the punishment phase of Miniel's trial, the
State reintroduced all the evidence from the guilt/innocence
phase. See Trans. vol. 28, at p. 12. The State also introduced
evidence of Miniel's many prior offenses in Illinois. The
State introduced evidence of Miniel's s guilty plea to a charge
of aggravated battery from beating his girlfnend with a
wooden spoon and a motorcycle chain. See Trans. vol. 28, at
pp. 35, 59. The State also introduced another previous charge
of aggravated battery where Miniel beat someone with
numchucks. See Trans. vol. 28, at pp. 4243. Other offenses
adduced by the State included two unlawful-use-of-weapons
charges, see Trans. vol. 28, at pp. 37-38; a retail theft charge,
see Trans. vol. 28, at p. 47; and a charge of disorderly
conduct, see Trans. vol. 28, at p. 48. The State also presented
evidence of Miniel's poor parole history. See Trans. vol. 28,
at pp. 37-38, 48-49. The State demonstrated that Miniel did
not have a reputation as a peaceful and law-abiding person.
See Trans. vol. 28, at pp. 45, 63, 71.
Miniel called three witnesses in the punishment phase.
Darryl Hendrichson, a Harris County Sheriffs Department
employee in the Harris County jail, testified about Miniel's
behavior while incarcerated. See Trans. vol. 28, at pp. 78-79.
Hendrichson testified that Miniel had never presented a
disciplinary problem during his incarceration before trial. See
Trans. vol. 28, at p. 80.
Carol Ruth Weed, a prospective juror in Miniel's case,
also testified in his behalf. After she was dismissed from jury
service, Weed felt that she had made a connection with
Miniel . See Trans. vol. 28, at p. 90. Weed visited him in jail
every week while he awaited trial. See Trans. Vol. 28, at p.
87. They spoke mostly about religion and she opined that
Miniel's religious inclination was genuine, not "foxhole
religion." See Trans. vol. 28, at pp. 87-88.
Finally, the defense called Juan Cortez, an assistant
Harris County chaplain. See Trans. vol. 28, at pp. 96-97.
Cortez testified that Miniel attended church service almost
every week while incarcerated. See Trans. vol. 28, at pp. 98-
99. Cortez. testified that Miniel's religious devotion seemed
sincere. See Trans. vol. 28, at pp. 100-01. Cortez testified
that those in society who accept their guilt and seek to be an
instrument for good in society should be given a second
chance. See Trans. vol. 28, at p. 102.
The jury retired to consider the special issues on
October 11, 1988.7 On October 12, 1988, the jury returned
affirmative answers to the special issues, see Trans. vol. 28, at
pp. 159-60, and the trial court sentenced Miniel to death. See
Trans. vol. 28, at pp. 162-63.
Miniel appealed his conviction and sentence to the
Texas Court of Criminal Appeals, which affirmed on January
22, 1992. See Miniel v. State, 831 S.W.2d 310 (Tex. Crim.
* The special issues were as follows:
Special Issue No. 1
Was the conduct of the defendant, Peter J. Miniel, that caused
the death of the deceased committed deliberately and with the
reasonable expectation that the death of the deceased or
another would result?
Special Issue No. 2
Is there a probability that the defendant, Peter J. Miniel,
would commit criminal acts of violence that would constitute
a continuing threat to society?
Trans. vol. I-A, at pp. 338-39.
A-39
App. 1992).> Miniel sought a rehearing, which the court
denied on April 15, 1992. Miniel then filed a petition for wnit
of certiorari in the Supreme Court of the United States, which
was denied on October 5, 1992. See Miniel v. Texas, 506
U.S. 885 (1992).
Miniel filed an application for writ of habeas corpus in
state court on June 15, 1993. On November 8, 1996, Miniel
filed an amended application. The State did not respond to
Miniel's application until March 9, 1999. The state habeas
court did not hold an evidentiary hearing on Miniel's claims.
On July 28, 1999, the state habeas court entered detailed
findings of facts and conclusions of law recommending that
relief be denied. See Ex parte Miniel, No. 450033-A,
Findings of Fact, Conclusions of Law and Order (337th Dist.
Ct., Harris County, Tex., July 28, 1999). The Court of
Criminal Appeals denied relief on December 15, 1999. See
Ex parte Miniel, No. 42,833-01 (Tex. Crim. App. Dec. 15,
1999).
Miniel filed a petition for writ of habeas corpus in this
court on December 14, 2000. See Petition for Writ of Habeas
Corpus (Docket Entry No. 7). Miniel alleges that:
1) his trial counsel rendered ineffective assistance in
violation of the Sixth Amendment because
(a) they failed to investigate and develop
mitigating circumstances relevant to his life,
specifically his family background and social,
medical, and mental history (pp. 4-14, 19-30);
(b) they made mistakes in jury selection and voir
dire examination of prospective jurors (pp. 30-
41);
* Robert Rodriguez represented Miniel on direct appeal.
A-40
(2)
(3)
(c) they failed to object to the State's suggestion
that the law of the parties applied to the
punishment phase of trial (pp. 42-48) ;
(d) they entered into an agreement not to cross-
examine an important witness (pp. 48-51);
(e) they failed to correct legal
mischaracterizations __ by the State (j. 51) ;
(f) they confessed Miniel's guilt in closing
arguments (pp. 51-55) ;
(g) they emphasized the graphic nature of the
crime (pp. 55-56) ;
(h) they failed to object to the introduction of
prejudicial evidence (pp. 56-57) ;
(i) they failed to effectively ross-examine
witnesses (p. 57);
(J) they failed to offer any evidence to support the
theory that Miniel's conviction was involuntary
(pp. 57-58) ;
(k) they failed to adequately plead for his life
during closing arguments (p. 58) ;
the State presented false testimony at trial (pp.
59-64) ;
the trial court failed to preserve his Sixth
Amendment rights by not inquiring into his
dissatisfaction with trial counsel's representation
(pp : 65 -68 ) ;
A-41
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
Texas' system for appointing capital counsel
violated the Sixth Amendment guarantee of
effective representation (pp. 69-74) ;
trial counsel's alleged agreement not to cross-
examine a prosecutorial witness violated
Miniel's s right to confront witnesses against
him (pp. 75-77) ;
the State engaged in a pattern of misconduct (pp.
78-82) ;
the trial court erroneously refused to excuse
venireperson Patrick O'Rourke (pp. 83-90) ;
the trial court erred in excusing venireperson
Kathy Hernandez for cause (pp. 91-97) ;
the trial court erroneously refused to excuse
venirepersons Frederick Jones, Joseph Foster,
Jr., and Dorothy Campbell for cause (pp. 98-
106) ;
the State misled the jury into believing that the
law of the parties applied at the sentencing
phase of trial (pp. 107-14) ;
the trial court erroneously failed to instruct the
jury that the law of the parties did not apply at
the punishment phase (pp. 115-16) ;
the trial court's failure to instruct the jury on the
vague special issues violated the Constitution
(pp. 117130) ;
(13) the jury instructions misled the jury concerning
the effect of a "no" vote by a single juror (pp.
131-33) ;
(14) the admission of Miniel's s coerced confession
violated the Fifth and Fourteenth Amendments
(pp. 134-38) ;
(15) the trial court violated his right to a speedy trial
by delaying his trial (pp. 139-41) ;
(16) the special issues precluded the presentation and
consideration of mitigating evidence (pp. 142-
48) ;
(17) the trial court unconstitutionally refused to give
his requested instruction on mitigation (pp. 149-
50) ;
(18) the trial court violated his due process rights by
failing to require the jury to consider prior
unadjudicated offenses only if proved beyond a
reasonable doubt (pp. 151-54) ;
(19) the trial court violated the equal protection
clause by allowing the State to admit
unadjudicated offenses in the punishment phase
(pp. 155-58) ;
(20) the trial court violated the Constitution by
failing to instruct the jury about Texas’ parole
law (pp. 159-63) ;
(21) the special issues unconstitutionally required the
jury to consider whether there was a
"probability" that Miniel would commit future
violent acts (pp. 164-65) ;
A-43
ee ee
eee
(22) the Texas rule requiring the expenditure of
peremptory challenges to preserve voir dire
error violated the equal protection clause (pp.
166-67) ;
(23) the Texas capital sentencing _ statute
unconstitutionally violated his right to have the
jury determine his fate (pp. 168-69) ; and
(24) his appellate counsel rendered _ ineffective
assistance by
(a) failing to raise voir dire errors on direct
appeal (pp. 170-71) ;
(b) failing to raise issues relating to Miniel's
dissatisfaction with trial counsel (p. 171);
and
(c) failing to raise a speedy trial claim (p.
171).
See Petition for Wnt of Habeas Corpus (pages indicated)
(Docket Entry No. 7).
Cockrell argues, that she is entitled to summary
judgment on Miniel's claims. Cockrell contends that several
of Miniel's claims are barred under the procedural default
doctrine. Cockrell also argues that, under the standard of
review applicable to state court determinations on habeas
review, the federal court should not grant habeas relief.
Additionally, Cockrell argues that Miniel's s claims are
meritless.
A-44
II. Standard of Review
Because Miniel filed his federal petition for writ of
habeas corpus on December 14, 2000, it is subject to review
under 28 U.S.C. § 2254 as amended by the Antiterrorism and
Effective DeathPenalty Act of 1996 ("AEDPA") , Pub. L. No.
104-132, 110 Stat. 1214. See Nobles v. Johnson, 127 F.3d
409, 415 (Sth Cir. 1997), cert. denied, 523 U.S. 1139 (1998).
Under the AEDPA, a court cannot grant a writ of habeas
corpus with respect to any claim that was adjudicated on the
merits in state court unless the state court decision:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d) (West Supp. 1999). Under the AEDPA,
federal review of a state court determination differs
depending on whether the issue is one of law, one of fact, or a
mixed question of law and fact. See Williams v. Cain, 229
F.3d 468, 474 (Sth Cir. 2000), cert. denied, s
(2001).
For questions of law or mixed questions of law and
fact adjudicated on the merits in state court, this court may
grant federal habeas relief under 28 U.S.C. 2254 (d) (1)only if
the state court decision was contrary to, or-involved an
unreasonable application of, clearly established Supreme
Court precedent. See Martinv. Cain, 246 F.3d 471, 475
(Sth Cir.), cert. denied, S.Ct. (2001). A state court
decision will be contrary to the Supreme Court's clearly
A-45
iii Ti a ee
eee
established precedent "if the state court either ‘applies a rule
that contradicts the governing law set forth in (the Supreme
Court],' or ‘confronts a set of facts that are materially
indistinguishable from a decision of this Court and
nevertheless arrives at a result different from [its] precedent.
I" Penry v. Johnson, U.S. __—, 121 S. Ct. 1910, 1918
(2001) (quoting Terry Williams v. Taylor, 529 U.S. 362, 406
(2000)).*
The "unreasonable application" standard permits
federal habeas relief only if a state court decision "identifies
the correct governing legal rule from [Supreme Court] cases
but unreasonably applies it to the facts of the particular state
prisoner's case." Terry Williams, 529 U.S. at 406."In applying
this standard, we must decide (1) what was the decision of the
state courts with regard to the questions before us and (2)
whether there is any established federal law, as explicated by
the Supreme Court, with which the state court decision
conflicts." Hoover v. Johnson, 193 F.3d 366, 368 (Sth Cir.
1.99-9). "[E] ven if the federal habeas court concludes that
the state court decision applied clearly established federal law
incorrectly, relief is appropriate only if that application is,
also objectively unreasonable." Penry, 121 S. Ct. at 1918;
see also Gardner v. Johnson, 247 F.3d 551, 560 (Sth Cir.
2001) (stating that the AEDPA mandates relief in the case of
a state court decision "that is not merely wrong but is so
wrong that it is 'unreasonable"").
* On April 18, 2000, the Supreme Court issued two separate
opinions involving the AEDPA, both originating in Virginia,
in which the petitioners had the same surname. Terry
Williams v. Taylor, 529 U.S. 362 (2000), involves § 2254(d)
(1) and Michael Williams v. Taylor, 529 U.S. 420 (2000),
involves S 2254 (e) (2). To avoid confusion, this court will
include the full name of the petitioner when citing these two
cases.
A-46
The AEDPA precludes federal habeas relief on factual
issues unless the state court's adjudication of the merits was
based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceeding. See 28
U.S.C. 2254(d)(2). The state court's factual determinations
are presumed correct unless rebutted by "clear and convincing
evidence.” 28 U.S.C. § 2254(e) (1).
III. Procedural Bar
Cockrell argues that several of Miniel's claims are
procedurally barred.. "[A] federal court may not consider a
state prisoner's federal habeas claim when the state court
based its rejection of that claim on an adequate and
independent state ground.” Martin v. Maxey, 98 F.3d 844,
846 (Sth Cir. 1996) (citing Coleman v. Thompson, 501 U.S.
722, 750 (1991)). The Supreme Court has held that
[i]n all cases in which a state prisoner has defaulted
his federal claims in state court pursuant to an
independent and adequate state procedural rule,
federal habeas review of the claims is barred unless
the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of
justice.
Coleman, 501 U.S. at 750.° "This doctrine ensures that federal
courts give proper respect to state procedural rules." Glover v.
* To demonstrate a fundamental miscarriage of justice in this
context, the petitioner must show that he is actually innocent
of the crime of which he was convicted. See Sawyer v.
Whitley, 505 U.S. 333, 339-40 (1992). Miniel makes no
A-47
Cain, 128 F.3d 900, 902 (Sth Cir. 1997) (citing Coleman, 501
U.S. at 750-51), cert. denied, 523 U.S. 1125 (1998) ; see also
Edwards v. Carpenter, 529 U.S. 446, 450 (2000) (finding the
cause and prejudice standard to be "grounded in concerns of
comity and federalism").
A claim may also be procedurally barred if it has not
been reviewed by the state courts. See Horsely v. Johnson,
197 F.3d 134, 137 (Sth Cir. 1999). "A procedural default . . .
occurs when a prisoner fails to exhaust available state
remedies and "the court to which the petitioner would be
required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred;""
Nobles, 127 F.3d at 420 (quoting Coleman, 501 U.S. at 734
n.1).° Texas courts considering unexhausted claims on a
successive habeas petition would find them procedurally
defaulted. Article 11.071 § 5(a) of the Texas Code of
Criminal Procedure prohibits a Texas court from considering
a successive habeas petition on the merits unless the petition
satisfies one of the narrowly-defined exceptions. The Fifth
Circuit has held that article 11.071 is an adequate state
procedural bar, finding that the rule is strictly and regularly
enforced. See Barrientes v. Johnson, 221 F.3d 741, 759 (Sth
Cir. 2000), cert. dismissed, 121 S. Ct. 902 (2001) ; Muniz v.
attempt to show that he was actually innocent of Manier's
murder.
° "An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State." 28
U.S.C. § 2254 (b) (2). This court, however, cannot grant
relief under the AEDPA if a petitioner has failed to exhaust
the available state court remedies. See 28 U.S.C.§ 2254 (b)
(1) (A).
A-48
Johnson, 132 F.3d 214, 221 (5th Cir.) , cert. denied, 523 U.S.
1113 (1998).
The court will consider Cockrell's procedural default
defense as the court addresses each claim.
IV. Analysis
A. Russell's Testimony
In his second claim for relief Miniel alleges that the
State presented false evidence at trial and suppressed
exculpatory evidence from him.’ Miniel bases this claim on
Russell's trial testimony. Specifically, Miniel points to
Russell's testimony concerning their plan to steal from
Manier. See Trans. vol. 25, at pp. 104-05. The State used
Russell's testimony to demonstrate that Miniel killed Manier
in the course of a robbery.®
* * * * *
within those cases in which a defendant must show "specific
prejudice to his defense." Doggett, 505 U.S. at 656.
’ The operative facts underlying Miniel's first claim for relief,
that trial counsel rendered ineffective assistance of counsel,
echo those raised as substantive constitutional violations. For
the sake of economy, the court will address the substantive
claims first, and will then address Miniel's ineffective
assistance claims.
* In virtually every claim, Miniel argues that his claims arise
under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
The (continued...)
A-49
Miniel fails to demonstrate "actual prejudice in his
ability to prepare and present his defense." Id. Miniel has not
shown that any witnesses died or disappeared during the wait.
Miniel only argues that "fading memories" impaired his
ability to crossexamine witnesses. Miniel offers no concrete
evidence of impaired recollection. Nor does Miniel point to
any testimony tainted by the passage of time. Miniel has
failed to show "actual prejudice" resulting from the delay.
This factor weighs strongly and decisively in the Cockrell's
favor.
5. Conclusion of speedy-tnal claim
Weighing the factors involved in the trial delay,
Miniel has not shown a violation of the Sixth Amendment.
While the trial delay spanned over two years and Miniel
promptly complained of the postponement, the delay was not
attributable to the prosecution. Furthermore, Miniel has
completely failed to show actual prejudice. The state court's
rejection of his speedy trial claim was not objectively
unreasonable. Because Miniel has failed to demonstrate that
the state court decision was contrary to, or an unreasonable
application of, federal law, his fifteenth claim is denied. See
28 U.S.C. § 2254(d)(1).
N. Mitigating Evidence
Miniel raises two claims involving the presentation of
mitigating evidence at trial Miniel's sixteenth claim is that
Texas' special issues precluded the presentation and
consideration of mitigating evidence. In his seventeenth
claim, Miniel contends that the trial court violated his
constitutional rights when it failed to give his proposed jury
instruction on mitigation. Miniel's claims are based on Penry
v. Lynaugh, 492 U.S. 302 (1989) ("Penry I").
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In Penry I the Supreme Court held that, in some cases
under the then-applicable scheme, Texas did not permit a jury
to give effect to mitigating evidence introduced by a
defendant. The defendant in Penry I offered extensive
evidence of his mental retardation and abused childhood as
mitigating factors. The Penry I Court found that those factors
may have been relevant to the special issues, but also "had
relevance to [his] moral culpability beyond the scope of the
special verdict question [n].1"PenryI, 492 U.S. at 323
(quoting Franklin v. Lynaugh, 487 U.S. 164, 185 (1988) (0'
Connor J., concurring)). The special issues were not broad
enough to give effect to Penry' s mitigating evidence. In
Penry I the Supreme Court held that
when a capital defendant introduced evidence about
his background, character, or circumstances that
reflects a reduced personal culpability, and the jury
cannot give effect to the mitigating force of that
evidence in response to Texas' special issues, the trial
court must provide instructions that allow the jury to
consider and give mitigating effect to that evidence.
Davis, 51 F .3 dat 460. The PenryI Court mandated that,
in such circumstances, the jury must be instructed "that it
could consider and give effect to the mitigating evidence" by
declining to impose the death penalty. Id. at 322-25. The
absence of such an instruction violated the Constitution.
In the punishment phase of trial Miniel called three
witness, each of whom testified that he would not pose a
future danger to society if incarcerated. These witnesses
focused on his good behavior and religious devotion while
incarcerated. Miniel requested that the trial court deliver a
jury instruction concerning the consideration of mitigating
evidence. The trial court refused his request.
l. Mitigating circumstances
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Miniel argues that the language of the special issues
prevented the jury from considering important mitigating
evidence. Miniel specifically argues that the jury could not
consider the following evidence:
* emotional trauma from his adoption;
¢ his alcoholic father;
¢ his history of severe abuse as a child;
¢ his history of substance abuse;
* the history of suicide attempts and substance abuse
by members of his family; and
¢ evidence of mental and social impairment,
See Petition for Writ of Habeas Corpus pp. 143-44 (Docket
Entry No. 7).
"A petitioner cannot base a Penry claim on evidence
that could have been but was not proffered at trial." Boyd v.
Johnson, 167 F.3d 907, 912 (Sth Cir.). cert. denied, 527 U.S.
1055 (1999) ; see also West v. Johnson, 92 F. 3d 1385, 1405
(Sth Cir. 1996), cert. denied, 520 U.S. 1242 (1997); Crank
v. Collins, 19 F.3d 172, 176 (Sth Cir. ) , cert. denied, 512 U.S.
1214 (1994) . The Fifth Circuit has "made it clear that any
Penry claim will be procedurally barred if the mitigating
evidence is not actually proffered at trial." Mann v. Scott, 41
F.3d 968, 979 (Sth Cir. 1994), cert. denied, 514 U.S. 1117
(1995). Miniel failed to present the evidence he contends was
precluded under the Special Issues. He fails to raise a valid
Penry claim on this basis. The state habeas court concluded
that Penry I "requires the introduction of mitigating evidence
before a jury, not allegations of mitigating evidence presented
A-52
years later . . . ." Ex parte Miniel, No. 450033-A, at p. 1190, 1
29. This determination is not contrary to, or an unreasonable
application of, federal law. See 28 U.S.C. § 2254(d) hh Sa
** Miniel seems to suggest that the nature of the special issues
influenced trial counsel into not presenting the mitigating
evidence. There is no indication that trial counsel refused to
present this information due to the nature of the special
issues. Furthermore, the Fifth Circuit "has consistently
rejected the related argument that the Texas statutory capital
sentencing scheme is invalid as preventing or chilling defense
counsel's development of mitigating evidence." Briddle v.
Scott, 63 F.3d 364, 377-78 (Sth Cir.) , cert. denied, 516 U. S.
1033 (1995) . Trial counsel's decision to not present that
mitigating evidence will be addressed in Miniel's ineffective
assistance of counsel claim.
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2. Mitigation instructions
During the punishment phase, Miniel asked the trial
court to instruct the jury concerning the presentation of
mitigating evidence pursuant to Penry I. The Fifth Circuit has
limited the application of Penry I to those cases in which the
mitigation evidence had relevance beyond the scope of the
special issues. Penry I held "that 'a jury [must] be able to
consider in some manner all of a defendant's relevant
mitigating evidence,, not that % a jury [must] be able to give
effect to mitigating evidence in every conceivable manner in
which the evidence might be relevant."" Motley, 18 F.3d at
1234 (quoting Johnson, 509 U.S. at 372). "[A] Penry claim
does not arise when constitutionally relevant evidence ‘can be
given mitigating effect in some way under the Texas special!
issues." Davis, 51 F . 3d at 464 (quoting Motley, 18 F . 3d
at 1234). The Fifth Circuit employs a two-step procedure to
determine whether the mitigating evidence requires relief
under Penry I: the court "must determine (1) that the proffered
evidence was constitutionally relevant mitigating evidence,
and, if so, (2) that the - proffered evidence was beyond the -
effective reach of the Jurors. Madden v. Collins, 18 F.3d 304,
308 (Sth Cir. 1994) (citing Johnson, 509 U.S. at 366), cert.
denied. 513 U.S. 1156 (1995).”
A federal court's first inquiry in a Penry claim is
whether the mitigating evidence was _ "constitutionally
relevant mitigating evidence.” See Vuong v. Scott, 62 F.3d
> The Supreme Court recently revisited its Penry I decision.
In Penry IJ the Court held that a mitigation instruction
commonly used by the Texas courts did not allow for the
consideration of mitigating evidence. See Penry II, 121 S. Ct.
at 1922. The Penry II decision does not seem to change the
jurisprudence flowing from Penry I; instead, Penry II merely
clarified Penry I's application to that specific mitigating
instruction.
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673, 680 (Sth Cir.), cert. denied, 516 U.S. 1005 (1995); Davis,
51 F.3d at 461. The Fifth Circuit has narrowly defined
"constitutionally relevant mitigating evidence." The Fifth
Circuit has characterized the relevancy inquiry as asking
"does the evidence implicate the basic concern of Penry 'that
defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional and mental
problems, may be less culpable than defendants who have no
such excuse." Madden, 18 F.3d at 307 (quoting PenryI, 492
U.S. at 319). "In order to present relevant evidence that one is
less culpable for his crime, the evidence must show (1) a
uniquely severe permanent handicap with which the
defendant is burdened through no fault of his own, ... (2) and
that the criminal act was attributable to this severe permanent
condition." Davis, 51 F .3 dat 460. In evaluating whether a
defendant suffers from a uniquely severe handicap, the Fifth
Circuit has limited Penry I to the precise facts of that case.
The Fifth Circuit seems to recognize a Penry claim based only
on the discrete mitigating evidence in that case, ie., severe
mental retardation and extreme childhood abuse.
In addition to bearing a similarity to the evidence in
Penry I, the Fifth Circuit has required that the criminal act
must have been related to the unique handicap. To warrant
federal relief, a Penry claim must exhibit a "nexus" between
the mitigating evidence and the criminal act. See Harris _ v.
Johnson, 81 F. 3d 535, 539 (Sth Cir. 1996), cert. denied, 517
U.S. 1227 (1997); Turner v. Johnson, 106 F.3d 1178, 1189
(Sth Cir. 1997). The nexus requirement finds its basis in the
language of Penry I. In Penry I the Supreme Court found that
the failure to consider Penry's mitigation evidence violated
the Constitution because his criminal conduct was
"attributable to a disadvantaged background, or to emotional
and mental problems. . . ." 492 U.S. at 304 (emphasis added)
. The Fifth Circuit has interpreted this language to require a
"clear nexus between [the petitioner's] handicap and his
criminal act... ." Madden, 18 F.3d at 307: see also Jones,
A-55
hensreeereeeneieneenieeeersineseeeeertee
171 F.3d at 276; Boyd, 167 F.3d at 912; Turner, 106 F.3d at
1189; Harris, 81 F.3d at 539; Russell v. Collins, 998 F.2d
1287, 1292 (Sth Cir. 1993), cert. denied, 510 U.S. 1185
(1994).The nexus need not be precise; "at a minimum the
evidence must permit a rational jury to ‘infer that the crime is
attributable’ at least in part, to the defendant's background”
Russell; 998 F, 2d at 1292 (citing Graham v. Collins, 950
F.2d 1009, 1033 (Sth Cir. 1992)).
If mitigation evidence is relevant, the court must
determine whether the evidence was beyond the effective
reach of the jurors. A jury must be able to "consider in some
manner [the petitioner's] relevant mitigating evidence" under
Texas' sentencing scheme. Motley, 18 F.3d at 1235. The Fifth
Circuit has stated that
a "fair reading" of Penry, as it remains the law, was
that the Texas special issues place a defendant's
mitigating evidence beyond jurors’ effective reach
when that evidence can be given only aggravating
effect. That is, as long as a defendant's evidence can
be given mitigating effect in some way under the
Texas special issues, no additional instruction would
be constitutionally required.
Id. at 1234 (citing Johnson, 509 U.S. at 371). For federal
habeas relief to be available, there must be a reasonable
likelihood that the jury applied the Texas special issues in a
way that prevented consideration of the constitutionally
relevant mitigating evidence. See Lackey v. Scott, 28 F.3d
486, 489 (Sth Cir. 1994), cert. denied, 513 U.S. 1086 (1995).
The State can "structure" the jury's consideration of
mitigating evidence, provided it does not prevent the jury
from giving effect to any constitutionally relevant mitigating
evidence. See Buchanan v. Angelone, 522 U.S. 269, 276
(1998); Johnson, 509 U.S. at 362; Boyde v. California, 494
U.S. 370, 377 (1990).
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The court will analayze the extent to which Smith's proffered
evidence constitutes "Penry-type evidence" beyond the scope
of the special issues.
a. Intoxication
Miniel argues that the jury could not consider his
intoxication and drug use on the night of the murder in the
context of the special issues. The Fifth Circuit has held that
"selfinflicted chronic drug and alcohol abuse and the resulting
arrested emotional development do not constitute a unique
handicap with which the defendant was burdened through no
fault of his own." Tucker v. Johnson, 115 F.3d 276, 282 (5th
Cir.), cert. denied. 522 U.S. 1017 (1997). Voluntary
intoxication does not constitute a "uniquely severe permanent
handicap." See Drew v. Collins, 964 F.2d 4] 1, 421 (Sth Cir.
1992), cert. denied, 509 U.S. 925 (1993). The Fifth Circuit
has repeatedly held that such factors may be considered
within the scope of Texas’ special issues. See West, 92 F.3d at
1405; Briddle v. Scott, 63 F.3d 364, 377 (5th Cir.), cert.
denied. 516 U.S. 1033 (1995) ; East v. Scott, 55 F.3d 996,
1007 (Sth Cir. 1995); Lackey 28 F.3d at 489; Nethery , 993
F.2d at 1161; James, 987 F.2d at ; 121-22; Drew, 964 F.2d
at 420-21; Bridge v. Collins, 963 F.2d 767, 769-70 (5th Cir.
1992) , cert. denied., 509 U.S. 925 (1993); Barnard v.
Collins, 958 F.2d 634, 638-39, (Sth Cir. 1992) , cert. denied,
506 U. S . 1057 (1993) ; Cordova v. Collins, 953 F.2d 167,
170 (Sth Cir.), cert. denied, 502 U.S. 1067 (1992) . Miniel's
evidence of drug abuse and intoxication was not Penry
evidence that could not have been considered by the jury in
the context of the special issues. The state habeas court's
denial of this claim was not contrary to, or an unreasonable
application of, federal law. See 28 U.S.C. § 2254 (d) (1).
b. Good behavior and religiosity
At the punishment phase, Miniel also presented
evidence of his good behavior while incarcerated and his
religious devotion. The Fifth Circuit has held that such
evidence may be considered within the context of the special
issues. See Turner, 106 F.3d at 1189; Nichols, 69 F.3d at
1267-68; James, 987 F.2d at 1121-22; Jernigan v. Collins,
980 F.2d 292, 295 (Sth Cir. 1992), cert. denied, 508 U.S. 978
(1993); Holland v. Collins, 962 F.2d 417, 419-20 (Sth Cir.
1992), c denied, 509 U.S. 925 (1993) ; Barnard, 958 F.2d at
638-39; Graham v. Collins, 950 F.2d 1009, 1032-33 (Sth Cir,
1992), aff'd, 506 U.S. 461 (1993). The Supreme Court has
expressly held that evidence of positive character traits has
"mitigating relevance to the second special issue concerning
his likely future dangerousness." Graham, 506 U.S. at 475.
The state court's rejection of this claim was not contrary to, or
an unreasonable application of , federal law. See 28 U. S. C.
§ 2254 (d) (1). Miniel' s mitigation evidence claims are
denied.
0. Unadjudicated Offenses
In issues eighteen and nineteen, Miniel argues that the
trial court erred in allowing the introduction of prior
unadjudicated offenses in the punishment phase. Miniel
argues that the equal protection clause prevents the
introduction of unadjudicated offenses because such evidence
is not allowed in non-capital trials. Miniel also argues that
due process requires that the jury be instructed that
unadjudicated offenses must be proven beyond a reasonable
doubt.
Miniel failed to lodge objections to the unadjudicated
offenses at trial. The state habeas court held that these claims
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cert. denied, 513 U.S. 830 (1994). "Under the Texas death
penalty statute in effect at the time of [Miniel' s] conviction,
the jury answers the special issues 'yes' or 'no' and then the
trial court imposes the punishment that follows from those
answers ...." Montoya v. Scott, 65 F.3d 405, 421(Sth — Cir.
1995), cert. denied, 517 U.S. 1133 (1996); see also TEX.
CODE CRIM. Proc. art. 37. 071 (e).
At jury selection, the State informed the jury that the
trial court would impose a death sentence if they answered the
special issues in the affirmative. At the punishment phase,
both parties told the jury that "yes" answers would result in a
death sentence. The trial court informed the jury that
affirmative answers to the special issues would result in a
death sentence. See Trans. vol. I-A, at p. 335. There was no
suggestion that the jury should not act within its
responsibilities under Texas statutory law. Nothing in this
case detracted from the jury's ability to recognize "the gravity
of its task and [to] proceed[] with the appropriate awareness
of its 'truly awesome responsibility." Lowenfield, 484 U.S. at
258 (quoting Caldwell, 472 U.S. at 341). Accordingly, the
State court determination was not contrary to, or an
unreasonable application of, federal law.See 28 U.S.C. §
2254(d)(1).
ae Ineffective Assistance of Trial Counsel
In his first claim for relief, Miniel challenges his trial
counsel's performance on several grounds. Under the test
announced in Strickland v. Washington, a defendant asserting
ineffective assistance of counsel must prove that (1) counsel's
performance was deficient and (2) counsel's deficient
performance prejudiced the defense. 466 U.S. at 687. If the
petitioner makes an insufficient showing on one prong of the
test, the court need not address the other. See id. at 697. In
order to prevail a defendant must overcome a strong
presumption that counsel rendered adequate assistance and
A-59
ee
made decisions in the exercise of reasonable professional
judgment. See id. at 690-91. It is not enough that petitioner
allege a deficiency on the part of trial counsel. Instead, he
must affirmatively prove prejudice, id. at 692, and
demonstrate ineffectiveness by a preponderance of the
evidence. See Jerniagan, 980 F.2d at 296. The court will
discuss each of Miniel's ineffective assistance claims under
this standard.
1. Previously-addressed claims
The court has already addressed the underlying basis
for several of Miniel's ineffective assistance claims. The
court has already rejected the substantive claim that:(1) Mr.
O'Rourke should have been dismissed for cause; (2) the
State's law of the parties argument prejudiced him in the
punishment phase; (3) Miniel's Sixth Amendment rights were
violated by the cross-examination of Russell; and (4) the
State's legal mischaracterizations violated his constitutional
rights. The Court has also addressed trial counsel's action in
the context of the procedural bar analysis. For the reasons
already provided, Miniel's ineffective assistance claims based
on those arguments are also without merit. The state habeas
court's rejection of those ineffectiveness claims was not
contrary to, or an unreasonable application of, federal law.
See 28 U.S.C. § 2254(d)(1).
2. Failure to investigate and present_ mitigating
evidence
Miniel contends that trial counsel failed to investigate
and present viable mitigating evidence at the punishment
phase of trial. To protect against arbitrary and capricious
imposition of the death penalty, a capital punishment
sentencing scheme must allow the sentencing authority to
consider any mitigating circumstances. See Jurek, 428 U.S.
at 271 (stating that "in order to meet the requirement of the
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Eighth and Fourteenth Amendments, a capital-sentencing
system must allow the sentencing authority to consider
mitigating circumstances"). A defense counsel's failure to
investigate and present mitigating evidence can amount to
ineffective assistance. See Terry Williams, 529 US. at 390;
Lockett v. Anderson, 230 F.3d 695, 711 (Sth Cir. 2000).
The Supreme Court has said that "counsel has a duty
to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In
evaluating an ineffectiveness claim, a particular decision not
to investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of deference
to counsel's judgments." Strickland, 466 U.S. at 691.
"Notwithstanding the constitutional stature of appropriate
mitigating evidence in a capital case, counsel's failure to
develop or present mitigating background evidence is not per
se deficient performance." Moore v. Johnson, 194 F. 3d 586,
614 (Sth Cir. 1999); see also West, 92 F. 3d at 1408 ("The
failure to present a case in mitigation during the sentencing
phase of a capital murder trial is not, per se, ineffective
assistance of counsel."). The Fifth Circuit has held that the
"failure to present mitigating evidence if based on an
informed and reasoned practical judgment, is well within the
range of practical choices not to be second-guessed."
Wilkerson v. Collins, 950 F.2d 1054, 1065 (Sth Cir. 1992),
cert. denied, 509 U.S. 921 (1993) ; see also Moore, 194 F.
3d at 614; McCoy v. Lynaugh, 874 F.2d 954, 964 (Sth Cir.
1989) (finding that counsel's decision not to present
mitigating evidence is entitled to deference when based upon
informed and reasoned practical judgment).
In support of his claim that trial counsel failed to
uncover mitigating evidence, Miniel provides the affidavits of
A-61
several family members.” These affidavits chronicle Miniel’ s
home life. Miniel was the illegitimate child of Carmen Canto,
who allowed her sister's family to adopt him shortly after
birth. Until age ten, Miniel thought that he was born into his
adoptive family. When he found out that he had been
adopted, the other family members taunted him, and his
behavior changed for the worse. The affidavits speak of
Miniel's adoptive father as a violent alcoholic, who severely
beat his children, especially Miniel.
Miniel apparently had a stormy home life, in constant
contention with his adoptive parents and siblings. Miniel
began abusing drugs and alcohol at a very young age. The
affidavits note that Miniel had been involved in motor vehicle
accidents that profoundly affected him. The affidavits also
chronicle a history of suicidal behavior by the Miniel family.
Each of Miniel' s family members state that trial counsel only
spoke with them briefly. They state that counsel never talked
with them about testifying or asked them any questions about
Miniel.
Miniel also complains that trial counsel failed to
obtain psychological testing in order to acquire mitigating
evidence. In a "neurological and psychological evaluation"
prepared for the state habeas proceedings, there is a finding
that -Miniel suffers from "mild to moderate
neuropsychological brain impairment with _ significant
dysfunction in the frontal lobes," -(Docket Entry . No. 7,
Exhibit 28 at p. 10, Neurological and Psychological
Evaluation prepared by Dr. Robert Geffner and Ron Roberts)
* The affidavits are from Miniel' s adopted family (Docket
Entry No. 7, Exhibits 17-22, affidavits of Jesse Miniel,
Manuel Miniel, Maria Juana Miniel, Maria Socorro LeBlanc,
Mary Margaret Miniel, and John P. Miniel) and his natural
mother (Docket Entry No. 7, Exhibit 23, affidavit of Carmen
Cantu).
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According to the report, this dysfunction caused Miniel to act
without thinking and rendered him unable to plan ahead.
Also, due to his brain dysfunction and "Post Traumatic Stress
Disorder" symptoms, Miniel acts with violence and cannot
control his impulses. The report also identifies that Miniel
may suffer neurological impairment from a variety of sources,
including his mother’s alcohol abuse while pregnant, and his
childhood injuries or abuse. The report indicates that "it is
possible that the conditions were present at the time of trial.
_ In the state habeas proceedings the State produced an
affidavit from trial counsel stating that he discussed
mitigation strategy with Miniel. See Ex parte Miniel, No.
450033-A, 1054-58, affidavit or Fred Heacock dated
February 4, 1999. Trial counsel stated that he never observed
any indication of mental health problems or retardation in his
client. When trial counsel asked Miniel about any history of
substance abuse, Miniel only referred to his substance abuse
at the scene of the crime. Trial counsel stated that he talked
with Miniel's family members before trial, including phone
conversations with his father. The family did not suggest to
trial counsel those areas of mitigating evidence reflected in
their affidavits. Trial counsel noted that Miniel's family was
present for only a portion of the trial, and they did not display
warm feelings toward Miniel. Trial counsel asked family
members to testify that Miniel should not receive a death
sentence, but they refused to do so. Trial counsel did not
subpoena family members to testify because "there was a
certain warmth missing in their feelings for Miniel and [he)
could not be sure of what they might say on cross-
examination." See Ex parte Miniel, No. 450033-A, at 1057,
affidavit of Fred Heacock dated February 4, 1999.
The state habeas court found trial counsel's affidavit to
be credible. See Ex parte Miniel, No. 450033-A, at 1177, q
22. The court found that Miniel was involved in all of the
strategic mitigation decisions. See id. Even though the
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family members offered mitigating evidence in their
affidavits, the state habeas court noted that none of them
indicated that they would be available for trial and none were
present for the entirety of the trial. See id. at 1177, 1 25. The
habeas court found trial counsel's explanation that family
members did not act favorably toward Miniel and did not
want to be involved to be credible. See id. at 1177, 1 26.
The state habeas court concluded that Miniel had not shown
deficient performance or prejudice with respect to this claim.
See id. at 1189-90, 11 2-9. Specifically, the court noted that
Miniel had not shown that there were witnesses willing to
testify in his behalf or that their testimony would have
benefited the defense. See id. at 1190,4. Further, the court
held that trial counsel did not render ineffective assistance in
failing to have Miniel evaluated by a psychological expert.
See id. at 1190, 7. This court will review these findings and
conclusions under the AEDPA. See 28 U.S.C. § 2254(d)(1).
a. Deficient performance
The Strickland standard mandates that trial counsel's
decision not to present mitigating evidence be granted
deference when that decision is fully informed, strategic, and
expected to either generate some benefit or avoid some harm
to the defendant. See Moore, 194 F.3d at 614. In essence,
when available mitigating evidence is not presented, this
court will focus on the reason for the decision not to present
the evidence. Id. Whether a decision not to present any
evidence at sentencing constitutes ineffective counsel
assistance depends on whether the decision was based on an
informed and reasoned practical judgment. See Mattheson v.
King, 751 F.2d 1432, 1441 (Sth Cir. 1985), cert. dismissed,
475 U.S. 1138 (1986).
Trial counsel's affidavit demonstrates that he
consulted with his client concerning possible mitigating
evidence, but that his client did not provide a fruitful source
A-64
of mitigation. Miniel apparently did not indicate to counsel
that his family would provide mitigating evidence of
childhood abuse, chemical dependency, or other factors. Trial
counsel's affidavit demonstrates that he attempted to secure
assistance from Miniel's family, but that they were not
disposed to help. Even when requested by trial counsel to
plead for Miniel's life, most of his family members did not
even stay in Houston for the punishment phase of Miniel's
trial. While his family now _ recounts mitigating
circumstances, they do not state that they would have
presented such testimony in the punishment phase of trial, or
that they were even inclined to stay for the whole trial.
As for the psychological evidence, trial counsel stated
that there was no indication.of mental impairment on the part
of Miniel. The pretrial evaluation found him to be sane and
competent. Nothing in the record suggests that trial counsel
should have been alerted to potential mental deficiencies.
Even the report submitted in the state habeas proceedings
does not link any psychological impairment to the crime, nor
does it concede but a probability that Miniel suffered from
psychological impairment at the time of the offense or trial.
No deficiency is evident in trial counsel's failure to seek
psychiatric assistance.
"Even if we were to assume that his trial counsel
failed to make an adequate investigation, [Miniel] has failed
to show that counsel would have made a different decision
about trial strategy if they had investigated and amassed the
information contained in the affidavits of the proposed
witnesses." Lamb v. Johnson, 179 F.3d 352, 359 (Sth Cir.),
cert. denied, 528 U.S. 1013 (1999). Trial counsel's interaction
with Miniel's family did not provide a favorable impression of
how they would testify during the punishment phase. Trial
counsel was apparently concerned that on cross-examination
Miniel's family would not provide helpful testimony.
Moreover, trial counsel's strategy to present evidence of
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reformation and religion could have been hampered by the
potential testimony, especially that of the psychologist
painting a picture of an uncontrollably and permanently
violent individual.
The state habeas court reasonably concluded that trial
counsel did not render deficient performance. The state
habeas court decision was not contrary to, or an unreasonable
application of, federal law. See 28 U.S.C. § 2254(d)(1).
b. Prejudice
Miniel's ineffective assistance claim also fails for a
lack of prejudice. A court must balance the evidence
presented at the punishment hearing against that which the
petitioner claims-should have been presented. See Ransom_v.
Johnson, 126 F. 3d 716, 723 (Sth Cir.), cert. denied, 522 U.S.
944 (1997). During the punishment phase of Miniel's trial,
the State introduced evidence of many prior offenses
committed by Miniel in Illinois, including aggravated battery
from beating his girlfriend, see Trans. vol. 28, at pp. 35, 59;
another charge of aggravated battery where Miniel beat
someone with numchucks, see Trans. vol. 28, at pp. 42-43;
two unlawful-use-of-weapons charges, see Trans. vol. 28, at
pp. 37-38; a retail theft charge, see Trans. vol. 28, at p. 47;
and a charge of disorderly conduct, see Trans. vol. 28, at p.
48. The State also presented evidence of Miniel's poor parole
history. See Trans. vol. 28, at pp. 37-38, 48-49. The State
demonstrated that Miniel did not have a reputation as a
peaceful and law-abiding person. See Trans. vol. 28, at pp.
45, 63, 71.
When comparing Miniel's violent history, including
the horrific manner in which he killed Manier, with the
potential testimony that centered on childhood abuse and
substance abuse, there is no reasonable probability that the
jury would have answered the special issues in a different
A-66 a
manner. Specifically, Miniel's past violent behavior would
overwhelm any of the proposed mitigating evidencé~ in
determining future dangerousness. In sum, the proposed
mitigation evidence "would have had little mitigating effect
against the evidence . . . ." Lamb, 179 F.3d at 360. Miniel has
failed to present "evidence of sufficient quality and force to
raise a reasonable probability that, had it been presented to
the jury, a life sentence would have resulted." See Andrews v.
Collins, 21 F.3d 612, 624 (Sth Cir. 1994), cert—denied, 513
U.S. 1114 (1995). ~
Furthermore, the evidence presented in the family
affidavits is not unequivocally mitigating. There is no
prejudice to a defendant when counsel fails to present
evidence that would have been detrimental to the defense.
See Ransom, 126 F.3d at 724; Cockrum v. Johnson, 119 F.3d
297, 304 (Sth Cir. 1997) (failure to investigate mitigating
evidence did not prejudice the defendant -- -because of the
=double-edged nature of the evidence) :". [E] vidence a
defendant's abuse-filled, violent upbringing and abuse of
drugs and alcohol frequently can be 'double-edged."" Williams
v. Cain 125 F.3d 269, 278 (Sth Cir. 1997), cert. denied, 525
U.S. 859 (1998).
Miniel's mitigating evidence may have harmed his
defense. For instance, Miniel's sister reveals that at the time
of his arrest Miniel confronted the police with a shotgun, only
lowering the weapon in response to her pleas. (Docket Entry
No. 7, Exhibit 19 at p. 17) Also, the accidents that some
members pointed to as deeply impacting ~Miniel's life
occurred as a result of intoxication. (Docket Entry No. 7,
Exhibit 19 at p. 17) Additionally, the affidavits recognize that
Miniel had opportunities to seek help for his substance
dependency, but did not avail himself of those opportunities.
(Docket Entry No. 7, Exhibit 17 at p. 7) Likewise, the
psychological evidence about Miniel's violent tendencies may
have confirmed his future danger to society.
A-67
The state court determination that trial counsel did not
render ineffective assistance in failing to present mitigating
evidence is not contrary to, or an unreasonable application of,
federal law. See 28 U.S.C. S 2254(d)(1).
3. Confession of quilt during closing
Pointing to trial counsel's statements in closing -
arguments, Miniel argues that trial counsel conceded his guilt,
guaranteeing that he would be convicted of capital murder.
However, trial counsel's obvious strategy in closing was to
turn the jury's anger away from his client and onto Russell.
Trial counsel faced an understandably difficult decision. The
State produced strong evidence indicating that Miniel killed
Manier, including testimony about Miniel's own confession.
Sensing the strength of the State's case, trial counsel decided
to focus on seeking a comparable.
A-68
NO. 450033-A
EX PARTE § IN THE 337th DISTRICT COURT
§ OF
PETER MINIEL,
aka PETER HERNANDEZ
Applicant § HARRIS COUNTY, TEXAS
RESPONDENT'S PROPOSED FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER ~
Having reviewed the applicant's application for writ of
habeas corpus, the Respondent's Original Answer, and the
official court documents, the Court makes the following
findings of fact and conclusions of law:
FINDINGS OF FACT
1. Peter Miniel, the applicant, was convicted by a jury for the
capital murder of Paul Manier in cause number 450033, in the
337th District Court of Harris County, Texas. After the jury
affirmatively answered the special issues, the trial court
sentenced the applicant to death.
2. The Court of Criminal Appeals affirmed the applicant's
conviction in an opinion delivered January 22,1992. Méiniel
v. State, 831 S.W.2d 310 (1992).
3. On October 5, 1992, the United States Supreme Court
denied the applicant's petition for wnt of certiorari. Miniel v.
Texas, 506 U.S. 885 (1992).
4. The Honorable Johnny Kolenda presided over the instant
trial.
A-69
5. Defense counsel Fred Heacock was appointed on
December 4, 1986 to represent the applicant as lead counsel
in the instant trial. Al Thom was appointed as co-counsel on
December 23, 1986.
Findings of Fact - First Ground for Relief:
6. Applicant's co-defendant, James Russell was arrested on
May 22, 1986 and on that same date gave a written statement
to the police. Respondent's Original Answer, Exhibit A.
7. The State called James Russell as a witness in the guilt/
innocence phase of the applicant's trial wherein Russell
testified that the applicant told him that he thought the
complainant had money and that they should rob the
complainant after Rogers went to bed; that Russell was not in
favor of robbing the complainant; that the applicant wanted
Russell to tell the complainant that they had some cocaine in
the car and Russell would get the cocaine; that it was the
applicant's idea to knock the complainant unconscious and
rob him; that the applicant and complainant were in the
bedroom when Russell returned from the car; that, while the
complainant cleaned a mirror for the cocaine, the applicant hit
the complainant in the back of the head with a beer mug; that
the applicant wanted the complainant dead so that he could
rob him; that, after the applicant stabbed the complainant and
tried to cut the complainant's throat, the applicant told Russell
to get the stereo; that Russell left the bedroom, and the
applicant came out of the bedroom two to five minutes later;
that Russell left because he was afraid of the applicant and
thought the applicant would kill him on the morning after the
instant offense; that Russell was arrested in Brookshire,
Texas, on May 22, 1986; that Russell cooperated with the
police and gave a written confession; that Russell helped the
police recover the knife; that Russell plead guilty to the
instant offense on August 19,1987; that Russell had been in
prison since December 30, 1987; that Russell pled guilty in
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the instant case for fifty years in prison and to testify against
the applicant; and, that Russell plead guilty because he was
scared (R. XXV - 92-94, 104-106,119-122).
8. The applicant also gave a taped statement to the police on
May 22,1986 wherein he states that he and Russell discussed
robbing the complainant prior to the complainant's murder.
Respondent's Original Answer, Exhibit B.
9. The Court finds based on a review of the statement of facts
of the instant case, Applicant's Amended Petition for Post-
Conviction Relief and Respondent's Original Answer, that
applicant's codefendant James Russell's recantation in his
1993 statement conflicts with his May 22, 1986 statement, the
bulk of his trial testimony and the applicant's own taped
statement.
10. Based on the credible assertions in the affidavits filed by
Ira Jones, Jim Lindeman and applicant's trial counsel, Fred.
Heacock, the court finds that the State did not withhold any
exculpatory evidence in violation of Brady v. Maryland, 373
U.S. 83 (1963). Respondent's Original Answer, Exhibit C, D
and E, Affidavits of Ira Jones, Jim Lindeman, and Fred
Heacock.
11. The Court further finds based on the credible assertions in
these affidavits, that there is no evidence to support Russell's
claim that he was threatened or coerced into testifying against
the applicant in the instant trial by anyone. Respondent's
Original Answer, Exhibit C D and E, Affidavits of Ira Jones,
Jim Lindeman, and Fred Heacock.
Findings o f Fact - Second Ground
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