Opposition Brief — Harris v. Dretke

No. 02-1433 MAY 8 2003

OFFICE OF THE CLARK

IN THE

SUPREME COURT OF THE UNITED STATES

DAVID RAY HARRIS,

Petitioner,

V.

JANIE COCKRELL, 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

RESPONDENT’S BRIEF IN OPPOSITION

GREG ABBOTT *GENA BUNN

Attorney General of Texas Chief, Postconviction

Litigation Division

BARRY R. McBEE

First Assistant Attorney General P. O. Box 12548

Capitol Station

JAY KIMBROUGH Austin, Texas 78711

Deputy Attorney General (512) 936-1600

For Criminal Justice FAX# (512) 320-8132

ATTORNEYS FOR RESPONDENT

* Counsel of Record

la.

1b.

i

CAPITAL CASE

QUESTIONS PRESENTED

Whether the federal district court impermissibly

ignored presumptively correct state court findings

of fact to find deficient performance of counsel at

the punishment phase, particularly in light of

Harris’ unwillingness to cooperate with and assist

counsel in preparing for the punishment phase, his

explicit instructions that counsel focus on the

guilt-innocence phase, and his refusal to allow

counsel to present evidence concerning his family.

Whether, in any event, the court of appeals

correctly determined that Harris was not prejudiced

by trial counsel’s failure to present the identified

mitigating evidence in light of the relative

weakness of the evidence.

Whether the admission of testimony at punishment

regarding Harris’ prior arrest for attempted

burglary and subsequent kidnapping charge was

constitutionally permissible, when Harris was

ultimately convicted of robbery, burglary and

attempted burglary but acquitted of kidnapping.

Whether the punishment charge — which included

a special issue regarding provocation by the victim

— allowed jury consideration of evidence that the

victim shot first.

Whether the punishment charge allowed jury

consideration of evidence of alcoholism and

intoxication as presented at trial.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...... 0. cece cscs cccnccces i

TARA OF COFNTBIIED fics idscesecieneccetbensess il

TABLE OF AUTHORITIES ....................00055 Vv

STATEMENT OF THE CASE .............. ey veer |

I. Pests ci OCs kaw sh becie erates ]

II. Pretrial Preparations and Development of Trial

PTR eee fe er ee ee ere eee 2

III. Guilt-Imnocence Phase .................. ..... 3

SV. Freee Oe a kk is cc kee ewaessekas veins “

V. State Habeas Corpus Review .................. 6

VI. Federal Habeas Corpus Review ................ 9

ps Pee cree rr ery re ter oro 13

I. The Questions Presented for Review Are

Unworthy of the Court’s Attention. ............ 13

II. Harris Was Not Deprived of Constitutionally

Effective Assistance of Counsel at the

Punishment Phase of His Trial. ............... id

A. The federal district court erred in

finding deficient performance. .......... id

Iil.

-lii-

TABLE OF CONTENTS, CONTINUED

B. In any event, Harris has failed to prove

that he was prejudiced by trial counsel’s

punishment-phase performance. ......

Harris’ Federal Constitutional Rights Were Not

Violated by Testimony Regarding His Arrest

for Attempted Burglary and Subsequent

Kidnapping Charge, Although He Was

Ultimately Acquitted of the Kidnapping

ES EE ere ee eae ee rere

The Punishment-phase Charge Permitted Jury

Consideration of Evidence That the Victim Shot

te ea nas ashlee a ew baa oe

A. Harris’ jurors were not directed to

violate their oaths to give effect to

mitigating evidence, therefore, Penry II

Pt eti ti wiireas avec kieees

B. Neither Texas law nor the record in this

case supports Harris’ assertion that

jurors believed they were precluded by

their rejection of the voluntary

manslaughter defense at the guilt-

innocence phase from answering the

third special issue negatively. .........

Harris’ Jury Was Not Precluded from

Considering Any Constitutionally Relevant

Mitigating Evidence at the Punishment Phase of

es ou AL bee ae eee e Wx hs

Page

.. 18

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<-

—

-jV-

TABLE OF CONTENTS, CONTINUED

Page

A. There is no evidence that Harris was

intoxicated when he murdered Mark

Mays, therefore, evidence of Harris’

history of alcoholism is _ not

constitutionally relevant. ............... 27

B. In any event, the special issues provided

an adequate vehicle for consideration of

Harris’ evidence of alcoholism. .......... 29

| PT TET ETT eCT LET eT eT CLT LIE ee 30

-V-

TABLE OF AUTHORITIES

Cases Page

Apprendi v. New Jersey, 530 U.S. 466 (2000) ....... 21,22,23

Brown v. State, 554 S.W.2d 677 (Tex. Crim. App. 1977) ... 26

Burger v. Kemp, 483 U.S. 776 (1987) .............00005 20

Cantu v. Collins, 967 F.2d 1006 (Sth Cir. 1992) .......... 26

Cordova v. Collins, 953 F.2d 167 (Sth Cir. 1992) ......... 29

Delo v. Lashley, 507 U.S. 272 (1993) .............00065 28

Dowling v. United States, 493 U.S. 342 (1990) ........ 21-22

Duhamel v. Collins, 955 F.2d 962 (Sth Cir. 1992) ........ 19

Evans v. State, 601 S.W.2d 943 (Tex. Crim. App. 1980) ... 26

Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) ... 5

James v. Collins, 987 F.2d 1116 (Sth Cir. 1993) ........ 29,30

Kelly v. Lynaugh, 862 F.2d 1126 (Sth Cir. 1988) ......... 29

Lackey v. Scott, 28 F.3d 486 (Sth Cir. 1994) ............. 29

Lockett v. Ohio, 438 U.S. 586 (1978) .............2006- 28

Marshall v. Lonberger, 459 U.S. 422 (1983) ............ 14

Mitchell v. Kemp, 762 F.2d 886 (11th Cir. 1985) ......... 17

Penry v. Johnson, 532 U.S. 782 (2001) (Penry IJ) ... 13,23,24

Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I) ....... 27,28

Ring v. Arizona, 536 U.S. 584 (2002) ...............2-. 21

-Vi-

TABLE OF CONTENTS, CONTINUED

Page

Self v. Collins, 973 F.2d 1198 (Sth Cir. 1992) ............ 14

Strickland v. Washington, 466 U.S. 668 (1984)... . 13,16,17,18

Tucker v. Johnson, 115 F.3d 276 (Sth Cir. 1997) ia ee! 29

White v. Collins, 959 F.2d 1319 (Sth Cir. 1992) .......... 25

Williams v. Taylor, 529 U.S. 362 (2000) ........... 16,18,19

Constitutions, Statutes and Rules

SE GUAT 666 cased ea decked 0bekseunernereee ]

Be es IS 6 0:06 4680's Keates bene een 12,14,15,27

TEX. CODE CRIM. PROC. ANN. art. 37.071 (West 1985) ..... 6

OUP. GY. Rie vecvccsvccdgrbsuswascastasvesuwpaans 13

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BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

In 1986, Harris was convicted by a jury of capital murder and

sentenced to death for murdering Mark Mays during the course of

committing or attempting to commit kidnapping of Mays’ girlfriend.

After unsuccessfully challenging his conviction and sentence in state

direct appeal and habeas corpus proceedings, Harris filed a petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2241 in federal district

court. Despite the existence of presumptively correct state court fact

findings disposing of Harris’ claims of constitutional error, the federal

district court conducted two evidentiary hearings and ultimately, more

than nine years after Harris’ petition was filed, granted Harris habeas

relief as to punishment on two claims. The Fifth Circuit Court of

Appeals reversed the district court’s judgment granting relief on those

claims and affirmed the judgment as to three claims cross-appealed by

Harris. Harris now seeks certiorari review of the Fifth Circuit’s

judgment. Harris, however, does not present a compelling reason for

this Court to review his claims and certiorari review should be denied.

STATEMENT OF THE CASE

1. Facts of the Crime

In the pre-dawn hours of September 1, 1985, Harris broke into the

apartment of Mark Mays in Beaumont, Texas, as Mays and his

girlfriend, Roxanne Lockard, slept. Harris, armed with a 38 caliber

revolver, made his way to the bedroom occupied by Mays and Lockard

and awakened them. He instructed Mays to get out of bed and lock

himself in a hallway bathroom, which he did. He directed Lockard to

get out of bed and put on some clothes, which she did. He then led

Lockard out the back door of the apartment at gunpoint and directed her

to get into his pickup truck, which was parked in a driveway behind the

apartment.

About that time, Mays exited the back door of the apartment and

stood in front of Harris’ truck with a gun in his hands. Lockard testified

at trial that she then heard gunfire but that she could not determine who

fired first because she immediately took cover. She got out of the truck

and did not see Harris, but she did see Mays in front of the truck,

2

partially bent over “like he was throwing up.” Realizing Mays had been

shot, Lockarc ran inside the apartment complex to find someone to calli

the police and an ambulance.

Police found Mays lying in a pool of blood with his gun underneath

him. An autopsy revealed he died from multiple gunshot wounds, two

of which were fatal.' A trace metal test came back positive for both of

Mays’ hands, and there was evidence he shot his gun at least four times.

According to Harris, Mays shot first, hitting Harris first in the meck

then in the shoulder, before Harris ducked behind the door of his truck

and began shooting at Mays. After shooting Mays several times, Harris

ran to the front of the truck where he saw Mays on his hands and knees

and shot him one last time, this time from about ten feet away.’ Harris

then got into his truck and drove away.

Il. Pretrial Preparations and Development of Trial Strategy

Harris played an active role in the preparation of his case for trial.

The testimony is uncontroverted that it was Harris’ chosen strategy to

present a defense of voluntary manslaughter at the guilt-innocence

phase of trial, and he instructed trial counsel to focus their efforts on

winning at the guilt-innocence phase. 6 R 133, 144, 179; 5 R 95-96.’

Indeed, as trial counsel Dennis Powell testified and Harris himself

acknowledged, Harris informed his attorneys that if he lost at guilt-

innocence and was convicted of capital murder, he would rather be

sentenced to death than serve a life sentence in prison. Jd. Harris, in

fact, specifically instructed his attorneys not to seek a plea bargain with

the State, and in conformity with those instructions, trial counsel did not

engage in plea negotiations. 6 R 218; 5 R 96; see also 5 R 64-65.

Nevertheless, trial counsel did conduct some preliminary

investigation into Harris’ background. Dennis Powell spoke with

Harris’ mother on several occasions and asked her to write a statement

‘Mays had gunshot wounds on both arms, his right shoulder, which wound

was disabling, and his face. He also had two wounds to his chest area which were fatal.

However, a forensic pathologist testified that the stippling on Mays’ body

indicated that the muzzle of the gun was within twelve to twenty-four inches of his body

when one of the fatal shots was fired.

*“R” refers to the record on appeal in the instant federal habeas corpus

proceeding, volumes 5, 6 and 9 of which contain the transcribed testimony of witnesses

at the evidentiary hearings conducted in federal district court.

A

.s

for him describing Harris’ childhood and their family background. Ann

Harris testified that she, in fact, provided Powell with a very lengthy

description of Harris’ background. 6 R 31-32. Harris’ mother also gave

Powell “literally boxes of stuff’ pertaining to Harris’ background,

including school records, employment records, and other

“memorabilia,” which trial counsel reviewed. 6 R 123. Trial counsel

obtained Harris’ school records from his mother and had reviewed the

records from Harris’ prior incarceration in California, which had been

obtained by the State prior to trial. 6 R 123, 152, 173-175, 212.

Whenever trial counsel attempted to bring up the subject of

punishment-phase evidence, however, Harris told them he was not

interested in presenting additional evidence at the punishment phase.

6 R 94, 123, 130, 179. Trial counsel spoke with Harris concerning this

issue on several occasions and repeatedly attempted to expiain to Harris

the importance of presenting mitigating evidence at the punishment

phase, but Harris steadfastly refused to aid trial counsel in identifying

potential sources of mitigating evidence and instructed them to focus

solely on the guilt-innocence phase. 6 R 130-132, 144, 148, 179.

In addition to his general instructions regarding the punishment

phase, Harris also specifically instructed his attorneys not to call his

family members to the stand and not to present evidence regarding his

family background. It is uncontroverted that evidence of Harris’ family

history was strictly “off-limits” to trial counsel during his 1986 trial. 6

R 121, 128-131, 147-148, 178-180 (Dennis Powell); 6 R 201, 205, 217-

218 (Clay Dugas); 6 R 31-32 (Ann Harris); 5 R 97, 104-105 (David

Harris). Even when trial counsel strongly advised him on several

occasions to allow them to present this evidence, Harris adamantly

refused. 6 R 178-179. As Dennis Powell testified, “[M]y understanding

was, David didn’t fault his family for what had happened and he didn’t

feel like he ought to drag his family into it.” 6 R 180.

Il. Guilt-Innocence Phase

Harris took the stand in his own behalf at the guilt-innocence phase

of his trial. He admitted that he broke into Mays’ apartment, but he

claimed that he only intended to burglarize it.‘ He testified that he took

“However, Harris could not explain on cross-examination why he failed to

notice a videocassette recorder, jewelry, and other valuable items in the living room of

the apartment and headed directly to the bedroom occupied by Mays and Lockard.

4.

the gun only because he thought “it would avoid anybody from getting

hurt.” According to Harris, Mays and Lockard were awakened not by

Harris’ flashlight shining in their eyes, as Lockard had testified, but by

the hall light when Harris opened the door to their bedroom. Harris

claimed that when he saw Mays and Lockard in the bedroom, he tried

to close the door, but they were already awake. Because Mays was

acting “jumpy” and Harris feared he might attack him, Harris “used”

Lockard to safely get out of the apartment. Harris claimed that he shot

Mays only after Mays shot him first. He testified that he was scared

during the exchange of gunfire with Mays and that he thought Mays was

trying to kill him.

However, Harris told police shortly after his arrest that he was

“looking for a piece” when he entered Mays’ apartment and that Mays

“acted crazy” but never threatened him. He also told police that his first

shot at Mays missed, so he fired two more times, but Mays was still

moving so he fired once more to “finish{] him off.”

The jury was instructed at the guilt-innocence phase on the primary

offense of capital murder and the lesser included offense of voluntary

manslaughter, defined as “caus[ing] the death of an individual under

circumstances that would constitute murder except that he caused the

death under the immediate influence of sudden passion arising from an

adequate cause.”’ The jury found Harris guilty of capital murder.

IV. Punishment Phase

At the punishment phase, the State presented evidence of numerous

prior offenses committed by Harris, both adjudicated and unadjudicated,

including burglaries, assaults, and robberies. Harris was court-

martialled, dishonorably discharged from the Army, and sentenced to

confinement as a result of a series of burglary and theft offenses he

*Harris objected to the charge at trial and argued on direct appeal that the

application paragraph on capital murder failed to require the State to disprove that he

acted as a result of sudden passion arising from an adequate cause and thereby

impermissibly shifted the burden of proof on this issue to him since the sudden passion

“element” was submitted only in the application paragraph on voluntary manslaughter.

The Texas Court of Criminal Appeals held that because Mays was acting in Lockard’s

defense and/or to prevent her kidnapping, Harris was not even entitled to a jury charge

on voluntary manslaughter; therefore, it found it unnecessary to decide whether the

charge as submitted was flawed. Harris v. State, 784 S.W.2d 5, 9-10 (Tex. Crim. App.

1989).

7%

committed while stationed in Germany. He was also convicted of

robbery, burglary, and two counts of attempted burglary and sentenced

to six and a half years in the California Department of Corrections. He

was convicted of possession of a deadly weapon by a prisoner while

incarcerated in California and was sentenced to an additional two years.

The State also presented evidence concerning Harris’ involvement

in the 1976 murder of a Dallas police officer, for which Randall Dale

Adams was convicted and sentenced to death. Harris admitted to police

officers that he had bragged about being the triggerman because it

enhanced his reputation as a bad, tough person. Harris was not charged

in connection with the offense, and he testified at Adams’ trial that

Adams shot and killed the police officer.®

There was also evidence that Harris attempted to escape from the

detention center where he was being held pending his capital murder

trial. Finally, responding to a hypothetical question setting forth the

facts of the capital offense and Harris’ prior criminal history, Dr.

Edward Gripon, a psychiatrist, opined that there was a substantial risk

that Harris would engage in similar behavior in the future.

In spite of the limitations that Harris placed on trial counsel’s

pretrial preparation for the punishment phase, trial counsel were able to

develop and present the testimony of Evelyn Powell, a counselor with

the Orange County Council of Alcoholism, and Nancy Petkovsek, a

parole officer, both of whom testified regarding Harris’ history of

alcoholism, his potential for rehabilitation, and his remorse following

the instant offense.’

At the conclusion of the punishment phase, the jury was instructed

to answer three questions:

* Adams’ conviction was subsequently set aside by the Texas Court of Criminal

Appeals based on its determination that the State had suppressed evidence favorable to

Adams, deceived the trial court, and knowingly used perjured testimony to gain his

conviction. Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989). As the court

wrote in its opinion on Harris’ direct appeal, “[Harris] was only one witness who

committed perjury during Adams’ capital murder trial. [Harris] recanted his trial

testimony during the hearing on Adams’ writ of habeas corpus and attested to Adams’

innocence.” Harris, 784 S.W.2d at 15 n.11.

"Trial counsel also intended to present the testimony of a prison chaplain who

had become acquainted with Harris since his arrest and had agreed to testify about

Harris’ religious conversion and repentance; however, they were forced to forego

presenting that evidence in light of Harris’ escape attempt, which took place while

prisoners were being escorted to chapel.

-6-

Was the conduct of the defendant that caused the death of the

deceased committed deliberately and with the reasonable

expectation that the death of the deceased or another would

result?

Is there a probability that the defendant will commit criminal

acts of violence that will constitute a continuing threat to

society?

Was the conduct of the defendant in killing the deceased

unreasonable in response to the provocation, if any, by the

deceased?

The jury answered all three questions affirmatively, and Harris was

sentenced to death pursuant to Texas law. See TEX. CODE CRIM. PROC.

ANN. art. 37.071 (West 1985).

V. State Habeas Corpus Review

After his conviction and sentence were affirmed on direct appeal,

Harris filed a state habeas application raising forty-four separate claims

of constitutional error, including the four issues presented in this appeal.

Harris argued in his application that the punishment charge

precluded jury consideration of his mitigating evidence, including

evidence that the victim shot first. He also asserted that his trial

attorneys were ineffective because they did not develop and present

evidence at the punishment phase concerning his traumatic childhood,

below-average intelligence and organic brain damage, the fact that he

was the victim of a homosexual gang rape at age thirteen, and positive

attributes of his California prison record. He attached to his application

affidavits from both family and non-family witnesses averring that he

suffered emotional abuse at the hands of his father, the trauma of losing

his younger brother from drowning at age four, and the trauma of being

blamed by his father for his brother’s death. He presented school

records indicating he had an I.Q. score of 88 in the seventh grade and

medical records showing that he had suffered two head injuries as a

teenager resulting in some “minor EEG changes which are probably of

no clinical significance.” Harris attached the affidavit of Yolanda

x %

Torres’ averring that Harris had told her that when he was twelve, other

children spread an untrue rumor that he was homosexual, and that when

he was thirteen, he was gang-raped by four men while hitchhiking to

Port Arthur, Texas. Harris also attached laudatory citations he received

in 1983 and 1984 during his incarceration in California. The trial court

summarily denied Harris’ application, but the Texas Court of Criminal

Appeals subsequently remanded the case to the trial court for additional

affidavits or, alternatively, an evidentiary hearing concerning the claims

of ineffective assistance of counsel and ordered the case filed and set for

submission on the challenge to the punishment jury charge.

Harris then supplemented his application with a ten-page

“psychosocial assessment” prepared by forensic social worker Fran St.

Peter, and a signed “declaration” from Harris, which stated in part:

My conversations with [trial counsel] regarding the penalty

phase of my trial were virtually non-existent. Counsel never

indicated nor discussed with me the importance of presenting

mitigating evidence at the penalty phase and did not explain to

me the general types of evidence that could be submitted or,

beyond a brief conversation about testimony from my family,

any specific evidence that could be submitted in my case.

* ¢ 8

If my tiral [sic] counsel had explained to me the importance

of mitigating evidence, I certainly would have instructed them

to interview my family members and to elicit testimony from

them. I also would have explained to them the facts concerning

my background that are set forth in detail in the Habeas petition

filed on my behalf... .

Trial counsel Dennis Powell submitted an affidavit which stated in part:

I did extensive investigation into David’s backgroud and

history. I obtained through the family boxes of information and

records of David’s background and history. I did interview the

family members. The decision as to the mitigation evidence to

be presented was made by the client, contrary to counsel’s

advice.

* * 8

*Torres was apparently Harris’ fiancée at the time of his state habeas corpus

proceedings. It is unclear when they met or when they became engaged, but there is no

indication in the record that Torres was acquainted with Harris at the time of his trial or

that she was available or willing to testify at his trial.

A

[E]fforts were made to [present mitigating evidence from family

members] but such efforts were rejected by the defendant. .. .

Trial counsel Clay Dugas submitted an affidavit which stated in part:

The witnesses called in the punishment phase were called

pursuant to discussions with the defendant. . . .

* + *&

The mitigating evidence which was presented on behalf of

David Ray Harris was presented with the consent of the

defendant. My recollection is that persons whom we would

have liked to call on behalf of the defendant, and many facts

which we would have liked to have delved into were ruled out

by the defendant. I might furthermore add that many of the

factors which could possibly have been brought out pertaining

to David Ray Harris’ past were matters which if brought would

“open the door” to many other areas of David Ray Harris’ past

which would in counsel’s mind have prejudiced the jury even

more so against the defendant. In short, the mitigating evidence

which was presented was the result of trial strategy. . . .

After considering the extensive affidavit testimony, the state habeas

court issued findings of fact and conclusions of law and recommended

that relief be denied.® With regard to the claim of attorney

ineffectiveness, the court made the following findings of fact:

Trial counsel did extensive research and investigation to

discover favorable mitigating evidence. All matters were fully

and completely conveyed to and discussed with Petitioner. The

decision as to what evidence to produce or not present at trial

was made intentionally, knowingly and voluntarily by

Petitioner.

All matters of consequence that occurred during trial were

evaluated carefully and properly by trial counsel and Petitioner,

and all decisions were made solely as the result of trial strategy.

The Court of Criminal Appeals adopted these findings and denied relief

on this claim.

*The Honorable Larry Gist, the judge who presided over Harris’ state habeas

corpus proceedings, also presided over his trial.

NE IE NE eR ONS en TORT ee |

-9-.

VI. _—‘ Federal Habeas Corpus Review

Harris then filed his habeas petition in federal district court raising

essentially the same claims and offering the same documentary support.

The district court conducted the first of two evidentiary hearings at

Harris’ request on July 15 and 16, 1996. Harris presented as witnesses

at the evidentiary hearing his mother, Ann Harris, and a family friend,

Eva Stewart, who testified at length regarding Harris’ childhood and

young adulthood, particularly his difficulty coping with the death of his

four-year-old brother at the age of three and the disparate treatment and

emotional abuse he received from his father throughout his life.

However, these witnesses also had personal knowledge about

Harris’ past criminal acts, in addition to those already offered by the

State at the punishment phase, such as stealing his own parents’ car and

burglarizing neighbors’ homes. 6 R 36, 71-72. Even when his parents

sent him to live with his aunt, Kay Furnish, in California in hopes of

breaking him from the life of crime he had fallen into in Vidor, Harris

continued to cause trouble for his aunt and was eventually asked by her

to leave. 6 R 38-39, 79. They further testified that Harris was raised in

a supportive, financially secure, two-parent household (6 R 35); that

each time Harris was incarcerated, his parents were there for him after

his release, providing him with a job, a car, and a home (6 R 42-43, 75,

77); and that his friends and family essentially tried everything they

could to get Harris on the right track, but their efforts only ended in

frustration. 6 R 55-56, 74. Further, Harris’ mother testified that,

because of what she perceived as favoritism on her husband’s part for

Ricky, and later Mark, over David, she in fact favored David and “tried

to give him the attention that his daddy wasn’t giving him.” 6 R 44.

She also testified that Harris’ father used his pension to finance Harris’

legal representation at trial. 6 R 46.

Harris also presented trial attorneys Dennis Powell and Clay Dugas,

who testified that they were aware of a great deal of the evidence

concerning Harris’ family background, 6 R 145-147, 178, but that Harris

refused to allow them to develop and present it. 6 R 121, 128-131, 147-

148, 178-180, 201, 205, 217-218. Harris himself testified that, at the

time of trial, it was his desire “to put up a wall around [his] family life

-10-

and to shield that and those matters from coming into court[.]”"? 5R

104-105. Trial counsel testified that the limitations imposed by Harris

necessarily limited their efforts to develop and present punishment-

phase evidence. 6 R 134, 147, 217-218.

Counsel further testified that they believed there was no basis to

present evidence at punishment that Harris had below-average

intelligence or brain damage, had been the victim of a homosexual rape,

or had a good prison record. Powell testified without contradiction that

Harris’ demeanor and behavior gave him no indication that Harris was

mentally deficient or brain-damaged."' 6 R 169-170, 172. Powell and

appellate counsel Doug Barlow both testified that Harris was very bright

and was, in fact, more intelligent than the average criminal defendant.

6 R 169-170, 172; 5 R 36; see also 5 R 68-69. Harris participated

actively in both the trial and appellate phases of his case. He

corresponded regularly with his attorneys, frequently providing them

with citations to relevant case law and cogent legal analyses of potential

claims." 6 R 170-171; 5 R 30-36; RX 40-62.

Counsel testified they were unaware at the time of trial of any

evidence that Harris had ever been the victim of a homosexual gang

rape; Harris never volunteered any such information, and counsel knew

of no other way they could nave discovered it. 6 R 166-167; see also id.

at 150. Notably, Harris neither called Yolanda Torres as a witness nor

proffered her affidavit for admission into evidence at the federal

evidentiary hearing. See 5 R 47 (withdrawing affidavit of Yolanda

Torres). Thus, Harris presented no evidence in federal court supporting

his claim that he was raped.

'°Ann Harris testified that Dennis Powell told her before trial that Harris had

“insist{ed]” that she not testify. 6 R 32. Both Ann and David Harris acknowledged that

Harris was very protective of his family and felt bad for putting them through the

embarrassment and pain of his being charged with and tried for capital murder, and that

his instructions to trial counsel to keep his family out of it were consistent with Harris’

propensities for shielding his family from the process. 6 R 54; 5 R 97, 104-105.

"The only evidence presented by Harris at the federal evidentiary hearing to

support his claim of below-average intelligence and brain damage was the same evidence

he had presented in his state habeas corpus proceeding: an I.Q. score of 88 in the seventh

grade (PX 8) and hospital records documenting two head injuries Harris suffered as a

teenager (PX 6).

'2Further, Harris’ mother testified that Harris had received his paralegal license

through correspondence courses while incarcerated on death row and, in fact, assisted

other inmates in preparing legal documents. 6 R 44-45, 55.

iss.

Finally, as trial counsel testified without contradiction at the

evidentiary hearing, they were aware of Harris’ prior prison stay and

had, in fact, reviewed the California prison records, which were made

available to them by the State before trial, but found nothing

substantially favorable.’ 6 R 152, 174-175, 212. Further, trial counsel

received no indication from Harris that the prison records contained

anything that could reflect favorably upon his character. Jd. In fact, the

only thing Harris informed trial counsel Clay Dugas of in connection

with his California prison stay is that his sentence was extended when

he was convicted of possession of a handmade deadly weapon while in

prison. 6 R 211-212. The prison records themselves reveal that, in

addition to his conviction for possession of a weapon by a prisoner

offered by the State at trial, Harris was found in possession of a

handmade weapon on at least three more occasions while incarcerated

in California; he was eventually placed in segregated housing as a result.

RX 4-6, 10-11 (admitted at 5 R 51). He was also written up for fighting,

participating in a riot, and engaging in prohibited sexual contact. RX 7-

8, 13-14 (admitted at 5 R 51).

At the second evidentiary hearing on August 31, 1998,'* Harris

presented the testimony of forensic social worker Fran St. Peter, who

opined that Harris’ emotional and psychological development were

arrested prior to the sixth grade due to his traumatic childhood and

polysubstance abuse at an early age.'© 9 R 10-18. St. Peter further

testified that she believed Harris suffers from alcohol dependence and

alcohol idiosyncratic intoxication disorder, which results in an

individual having a total change in personality when under the influence

"Harris offered into evidence laudatory citations he received in 1983 and 1984

during his incarceration in a California prison for armed robbery. PX 15. However, the

source of these citations is unclear as they were not included in the official prison

records obtained by the State at trial or by counsel for the Director in preparation for

federal proceedings. Assuming they were in Harris’ possession at the time of trial, he

apparently failed to alert counsel to the existence of such information. 6 R 152, 174-175,

AS,

“After initially overruling the Director’s objections to several hearsay

affidavits presented by Harris in lieu of live testimony at the first evidentiary hearing,

the district court sustained the Director’s renewed objection in an order issued almost

two years after the first hearing and invited Harris to request a second hearing at which

he could present these witnesses’ live testimony.

'SHarris also presented witnesses Terrence Kirk and Jay Swango, but their

testimony is not relevant to the issues presented in this appeal.

a.

of alcohol. 9 R 18-19. She acknowledged on cross-examination,

however, that the most recent version of the Diagnostic and Statistical

Manual does not recognize alcohol idiosyncratic intoxication disorder

as a separate diagnosis. 9 R 28.

The district court then referred the case to a magistrate judge to

prepare a report and recommendation. The magistrate judge

recommended that Harris’ petition be conditionally granted based on his

conclusion that trial counsel rendered ineffective assistance at the

sentencing hearing, but that relief on Harris’ other claims be denied.

Harris’ Appendix (hereinafter “App.”) E. In so holding, the magistrate

judge seized on testimony from trial counsel Dennis Powell that he was

circumventing Harris’ pretrial instructions when he cross-examined the

State’s witnesses and called two defense witnesses at the punishment

phase of trial. App. E-26. Characterizing this testimony as inconsistent

with Powell’s affidavit testimony in state court that “[t]he decision as to

the mitigation evidence to be presented was made by the client,” the

magistrate judge held that Harris had proved that the state court’s

findings were erroneous and thus had rebutted the presumption of

correctness accorded under former 28 U.S.C. § 2254(d).'* App. E-26-

27. Significantly, though, the magistrate judge went on to make the

inconsistent finding that “Harris did have a change of heart after being

convicted, and he agreed to allow counsel to put on their case in

mitigation. ...” App. E-28. Trial counsel’s misstep, according to the

magistrate judge, was in failing to continue investigating and developing

evidence regarding Harris’ background through non-family member

witnesses, despite Harris’ initial instructions, in the hopes that Harris

would have a change of heart.” App. E-3-28-29. The magistrate judge

'© Actually, the magistrate judge erroneously applied the amended version of

28 U.S.C. § 2254(e)(1), but the district court corrected the error. See App. F-15.

'The magistrate judge determined that trial counsel performed deficiently, not

only in failing to present evidence regarding Harris’ family, but also in failing to

investigate and present evidence regarding a homosexual gang rape, below-average

intelligence, organic brain damage, and prison record. Failing to account for trial

counsel’s testimony setting forth the strategic reasons for not presenting this evidence

—i.e., that they knew of no evidence to support the allegations, that the evidence would

do Harris more harm than good — the magistrate judge surmised that counsel’s failure

to investigate these areas was based, not on the strategic reasons identified by counsel,

but on Harris’ instructions to counsel not to present mitigating evidence, which

according to the magistrate judge constituted deficient performance given his

determination that counsel mistook the scope of Harris’ instructions. See RE Tab 8 at

935-936.

a2.

further held that, had counsel presented evidence of Harris’ family

background, the homosexual gang rape, below-average intelligence,

organic brain damage, and prison records, there is a reasonable

probability that he would not have been sentenced to death. App. E-35;

see also App. F-23-24.

After both parties filed written objections to the magistrate judge’s

report and recommendation, the district court issued a memorandum

opinion adopting the magistrate’s report, except as specifically noted in

the opinion, and concluding in addition that Harris was also entitled to

relief based on his conclusion that the punishment charge precluded jury

consideration of evidence that the victim shot first. App. F-4-5. The

district court acknowledged that this evidence is relevant to the third

special issue, but concluded nonetheless that the special issue was an

inadequate vehicle because it suffered the same defect as the

“nullification instruction” recently condemned by this Court in Penry v.

Johnson, 532 U.S. 782 (2001) (Penry II). Specifically, the court held

that the instructions were internally contradictory and confusing to the

jury because the jury could not logically answer the third punishment

issue “no” as such a response would have been inconsistent with its

finding at the guilt-innocence phase (in rejecting Harris’ voluntary

manslaughter defense) that Harris did not kill “under the immediate

influence of sudden passion based upon adequate cause.” App. F-5.

The United States Court of Appeals for the Fifth Circuit reversed

the lower court’s grant of relief on these two claims and affirmed its

judgment on three additional claims cross-appealed by Harris.

ARGUMENT

I. The Questions Presented For Review Are Unworthy Of The

Court’s Attention.

The Rules of the Supreme Court provide that review on writ of

certiorari is not a matter of right, but of judicial discretion, and will be

granted only for “compelling reasons.” SUP. CT. R. 10. In the instant

case, Harris fails to advance a “compelling reason” for this Court to

review his case, and none exists.

-14-

Il. Harris Was Not Deprived of Constitutionaliy Effective

Assistance of Counsel at the Punishment Phase of His Trial.

In Harris’ first question presented for review, he complains that his

trial attorneys rendered ineffective assistance at the punishment phase

when they failed to investigate, develop and present evidence Harris

claims was available. However, trial counsel’s performance at the

punishment phase was certainly reasonable in light of the limitations

Harris placed on them."* But, in any event, regardless how these

deficient-performance issues are resolved, the court of appeals correctly

reversed the district court’s judgment because Harris has failed to prove

prejudice.

A. The federal district court erred in finding deficient

performance.

The federal district court failed to accord proper deference to the

state court findings disposing of this claim. But, in any event, the

evidence presented at the federal hearings only underscores the

correctness of the state court findings.

State court findings of fact are entitled to a presumption of

correctness “unless they are not ‘fairly support[ed]’ by the record, or

another of the exceptions applies, or [Harris] establishes ‘by convincing

evidence’ that they are erroneous.” Self v. Collins, 973 F.2d 1198, 1204

(Sth Cir. 1992) (quoting former 28 U.S.C. § 2254(d))."° A federal

habeas court must “more than simply disagree with the state court

before rejecting its factual determinations.” Marshall v. Lonberger, 459

U.S. 422, 432 (1983) (internal quotation omitted).

Apparently satisfied that the state court’s findings were the result of

a full and fair hearing and that none of the eight enumerated exceptions

to the former statutory presumption of correctness applied, the district

court held nonetheless that Harris had demonstrated by convincing

evidence presented in federal court that the findings are erroneous. App.

'*The court of appeals assumed arguendo the validity of the district court’s

deficient-performance finding and resolved the claim based on the absence of prejudice.

See App. A-8.

Harris’ federal petition was filed in district court on April 28, 1992, prior to

the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

104-132, 110 Stat. 1214 (1996); thus, it is governed by the pre-amendment version of

the federal habeas corpus statute. Lindh v. Murphy, $21 U.S. 320, 335 (1997).

-15-

E-26-27, F-16; see also 28 U.S.C. § 2254(d) (West 1992). However, the

record of the federal hearing reveals that it resulted in essentially the

same, though more expansively developed, testimony as that presented

through affidavit in state court. See Statement of Facts at 6-12, supra.

But while the state court credited the affidavit testimony of trial counsel

over that of Harris and found that “[ajll matters were fully and

completely conveyed to and discussed with [Harris]” and “[t}he decision

as to what evidence to produce or not present at trial was made

intentionally, knowingly and voluntarily by [Harris],” the district court

spurned these findings and credited Harris. App. F-20.

The district court’s holding that Harris has overcome the

presumption of correctness hinges on a perceived discrepancy between

the affidavit testimony of Dennis Powell “that all decisions about what

evidence to present and what witnesses to call at the punishment phase

of the trial were made by Harris” and his testimony at the federal

hearing that “they called witnesses and presented evidence at the

punishment phase of the trial despite allegedly being told not to do so

by Harris.” App. F-15-17. However, the record as a whole shows that

trial counsel did comply with Harris’ wishes regarding the punishment

phase, as the state court found. Powell’s only concession at the federal

hearing was that their presentation of Evelyn Powell and Nancy

Petkovsek at the punishment phase conflicted with instructions they had

received from Harris before he was found guilty of capital murder. See

6 R 184-185. The district court itself reconciled any discrepancy arising

from this testimony in its subsequent finding that, while Harris initially

instructed his attorneys not to present additional evidence at the

punishment phase, he had a “change of heart” after the jury found him

guilty of capital murder and agreed to allow counsel to present a case in

mitigation. App. E-28.

The district ‘court erred in holding that Harris established by

convincing evidence that the state court findings are erroneous. If

anything, the evider:ce presented in federal court lends the findings

further support. The state court findings are entitled to the presumption

of correctness and compel the rejection of Harris’ claim of ineffective

assistance of counsel at the punishment phase.

Claims of ineffective assistance of counsel are judged under the

two-prong test of Strickland v. Washington.

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel was not

-16-

functioning as the counsel guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.

466 U.S. 668, 687 (1984), quoted in Williams v. Taylor, 529 U.S. 362,

390 (2000) (quotation marks omitted). “To establish ineffectiveness, a

defendant must show that counsel’s representation fell below an

objective standard of reasonableness.” Williams, 529 U.S. at 390-91

(quoting Strickland, 466 U.S. at 688, 694) (quotation marks omitted).

Defense counsel has a duty to make a reasonable investigation or to

make reasonable decisions that make particular investigations

unnecessary. Strickiand, 466 U.S. at 691. However, a court must assess

counsel’s investigatory decisions in light of the defendant’s own

statements and actions. /d.

Counsel’s actions are usually based, quite properly, on informed

strategic choices made by the defendant and on information

supplied by the defendant. In particular, what investigation

decisions are reasonable depends critically on such information.

... [W]hen a defendant has given counsel reason to believe that

pursuing certain investigations would be fruitless or even

harmful, counsel's failure to pursue those investigations may not

later be challenged as unreasonable.

Id. Thus, the scope of an attorney’s duty to investigate may be limited

by a defendant’s lack of cooperation. Indeed, a criminal defendant

cannot block his attorneys’ efforts and later claim that the resulting

performance was constitutionally deficient.

The state court’s finding that “[t]he decision as to what evidence to

produce or not present at trial was made intentionally, knowingly and

voluntarily by [Harris]” therefore precludes a finding of deficient

performance.

Furthermore, even if the state court findings were not entitled to

deference, Harris has failed to prove that trial counsel performed

deficiently at the punishment phase. In granting Harris relief on this

claim, the lower court disregarded Strickland.

The district court held that Harris’ trial attorneys rendered deficient

performance because they failed to investigate, determine the existence

of, and present evidence at the punishment phase regarding Harris’

childhood, mental impairments, and good behavior in prison. The court

«9.

found that while Harris originally instructed counsel not to present a

case in mitigation at the punishment phase, he had a change of heart

after the jury found him guilty of capital murder and allowed them to

present evidence at punishment. App. E-27-29. Trial counsel’s error,

according to the district court, was in failing to continue investigating

Harris’ background despite Harris’ pretrial instructions to the contrary

to be ready with this evidence when Harris gave them the “green light.”

However, this holding imposes a duty on counsel that is insupportable

in light of Strickland.

Even in light of the district court’s finding that Harris had a change

of heart after the guilty verdict and would have allowed counsel to

present this evidence,” the fact remains that until that time, Harris had

refused to cooperate with or assist counsel in preparing for the

punishment phase and had instructed them to focus their efforts on the

guilt-innocence phase. See App. E-27; see also Statement of Facts at 2-

3, 9-11, supra. Furthermore, counsel did not “blindly follow [Harris’]

command” to focus their efforts on the guilt-innocence phase. Mitchell

v. Kemp, 762 F.2d 886, 889 (11th Cir. 1985) (holding that counsel’s

failure to investigate and present mitigating evidence was not deficient

performance, noting that counsel’s “ability to obtain such . . . evidence

at the time was inhibited by Mitchell’s direction not to call his family.

...”). Rather, counsel continued investigating Harris’ background, but

their efforts were stymied by Harris’ refusal to cooperate. See

Strickland, 466 U.S. at 691 (holding that counsel’s investigatory

decisions must be assessed in light of defendant’s own statements and

°Furthermore, while not critical to the Director’s argument on this issue, it is

the Director’s position that, to the extent the lower court found that, after his apparent

change of heart, Harris would have agreed to the presentation of mitigating evidence

regarding his childhood and family background at punishment, this finding is clearly

erroneous. The record reveals that Harris agreed to the presentation of two non-family

witnesses at the punishment phase of trial on topics unrelated to his family history.

There is no indication in the record, however, that Harris would have agreed to the

presentation of testimony, whether from family members or non-family members,

concerning his childhood and family. 6 R 31-32, 121, 128-131, 147-148, 156, 178-180;

201, 205, 217-218; 5 R 97, 104-105.

Additionally, to the extent the district court found that Harris only instructed

counsel not to call family members as witnesses at trial, but did not prohibit them from

presenting evidence regarding his childhood and family background from other sources,

that finding is clearly erroneous. The record shows that Harris specifically instructed his

attorneys not to call his family members to the stand and not to present evidence, from

any source, regarding his childhood and family history. 6 R 31-32, 121, 128-131, 147-

148, 156, 178-180; 201, 205, 217-218; 5 R 97, 104-105.

-18-

actions). Thus, even assuming the validity of the district court’s

findings, the court erred as a matter of law in holding that the facts as

found entitled Harris to relief.

B. In any event, Harris has failed to prove that he was

prejudiced by trial counsel’s punishment-phase

performance.

Alternatively, even assuming that Harris could prevail on the

deficient-performance prong, he has failed to prove, “in light of the

overall weakness of the proposed mitigating evidence,” that he was

prejudiced by the omission of evidence regarding his childhood, mental

impairments, and good behavior in prison. See Harris’ Appendix A-10.

Harris must affirmatively prove prejudice by demonstrating 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.\. at 694, quoted in Williams v. Taylor, 529 U.S. at

391. In the context of a claim that counsel rendered ineffective

assistance at the punishment phase of a capital murder trial, the inquiry

is whether there is a reasonable probability that, had the evidence been

presented, it would have altered the jury’s punishment verdict. See

Strickland, 466 U.S. at 695.

As the court of appeals concluded, the district court, in holding that

Harris proved prejudice, failed to take into account the serious negative

aspects of the evidence Harris proposes should have been presented.

See App. A-9. Regarding Harris’ evidence of his traumatic childhood,

which the court of appeals aptly characterizes as “less than compelling,”

App. A-9, the very people who could relate these facts also had personal

knowledge of Harris’ violent past; the State could have easily used these

witnesses to reveal that Harris was even more dangerous than he already

appeared. See Statement of Facts at 9, supra. Furthermore, the State

would have had a powerful argument that, despite the fact that Harris

grew up in a supportive family and had ample opportunity to lead a

profitable life, he chose to lead the life of a criminal instead. Similarly,

Harris’ California prison records, as a whole, reveal that Harris was less

than a model prisoner; had counsel tried to argue to the jury, based on

some commendations that Harris received while incarcerated, that he

was a “good prisoner,” the State would almost certainly have rebutted

that argument with the ample unfavorable information contained in the

-19-

records, which Harris’ jury never heard. /d. at 11.

Harris’ claims that he was mentally impaired and the victim of rape

suffer from a lack of evidentiary support. An I.Q. score of 88 in the

seventh grade,” even if it is assumed that the score was truly indicative

of Harris’ intellectual functioning, simply does not rise to the level of

evidence reducing his culpability for the offense. And there is simply

no evidence that Harris is brain-damaged. Indeed, in light of the

overwhelming evidence in the record attesting to Harris’ intelligence,

including his testimony at the guilt-innocence phase of trial, a mitigation

theory based on Harris’ limited mental capacity would have been utterly

implausible. Likewise, Harris failed to present any evidence in federal

court to support his allegation that he was the victim of a homosexual

gang-rape when he was thirteen years old.

The evidence Harris proposes should have been introduced at the

punishment phase of his trial stands in stark contrast to the evidence

omitted by trial attorneys in Williams v. Taylor, in which this Court held

that the defendant had proved prejudice. Williams’ attorneys had failed

to discover evidence “that the defendant’s parents were imprisoned for

criminal neglect of their children, that defendant had been repeatedly

beaten by his father, that while his parents were imprisoned he spent

time in an abusive foster home, and that he had been returned to the

custody of his abusive parents upon their release from prison,” as well

as evidence of borderline mental retardation and good prison record.

App. A-9. See Williams, 529 U.S. at 395-396.

Harris’ evidence of emotional abuse suffered at the hands of his

father does not even approach the evidence of extreme physical abuse

and neglect omitted by Williams’ counsel; likewise, Harris’ evidence of

below-average intelligence is not comparable to evidence that Williams

was “borderline mentally retarded.” The only evidence even remotely

similar to that cited by the Court in Williams is the commendations

Harris received while in prison in California, but Harris’ prison records

contain more unfavorable information. See Statement of Facts at | l,

supra.

"In finding prejudice, the district court likened the omitted evidence in this

case to that omitted by counsel in Duhamel v. Collins, 955 F.2d 962, 965-966 (Sth Cir.

1992), in which the Fifth Circuit found the defendant had failed to prove prejudice. See

App. E-31-32 It should be noted that, contrary to the district court’s statement that

“Duhamel’s and Harris’ IQ scores were similar,” RE Tab 7 at 898, evidence existed “that

Duhamel was moderately mentally retarded with an IQ of 56 [and] that he failed every

grade but kindergarten.” Duhamel, 955 F.2d at 966.

-20-

Harris’ case is more closely comparable to Burger v. Kemp, 483

U.S. 776, 788-796 (1987), in which the Court held that trial counsel did

not render ineffective assistance in choosing not to investigate and

present evidence of his client’s troubled family background. The cases

involve similar degrees of abuse: Harris, the victim of emotional abuse

in an otherwise stable home, and Burger, the victim of severe neglect

and an extremely unstable environment. 483 U.S. at 789-790. In both

cases, significantly, the witnesses who were available to relate the facts

of the defendants’ family background also had personal knowledge

regarding the defendants’ violent past not related through other

witnesses, facts that if revealed through cross-examination, could harm

their chances for a life sentence. Jd. at 792. Burger, unlike Harris, had

virtually no criminal record and no record of violent conduct. Jd. at 790.

And Burger’s attorneys, unlike Harris’, presented no mitigating

evidence. /d. at 788. In light of these facts, the Court held that Burger

had “made no showing that the justice of his sentence was rendered

unreliable by a breakdown in the adversary process caused by

deficiencies in counsel’s assistance.” Jd. at 795-796. The same holds

true in this case. 7

In light of the record as a whole — the relative weakness of Harris’

proposed evidence, the aggravating aspects of the evidence, the strong

evidence of guilt, the aggravating evidence presented by the State at

trial, and the mitigating evidence presented by counsel at trial regarding

Harris’ alcoholism and remorse for the instant offense — there is no

reasonable probability that the presentation of this additional evidence

at the punishment phase of trial would have altered the jury’s

punishment verdict. The court below correctly reversed the district

court’s finding of prejudice, and this Court should deny certiorari

review.

Ill. Harris’ Federal Constitutional Rights Were Not Violated by

Testimony Regarding His Arrest for Attempted Burglary and

Subsequent Kidnapping Charge, Although He Was Ultimately

Acquitted of the Kidnapping Charge.

In his second question presented, Harris asserts that it was improper

for the prosecution to adduce punishment-phase evidence about the

circumstances of a kidnapping charge for which Harris was ultimately

acquitted. As the lower courts correctly determined, however,

introduction of this evidence for purposes of proving Harris’ future

fi.

dangerousness was not contrary to the collateral estoppel aspect of

double jeopardy and thus did not violate due process.”

At the punishment phase of trial, the State presented the testimony

of Deputy Sheriff Ray Rucker of San Bernadino, California, that on

November 3, 1979, he responded to a call reporting that shots had been

fired at an electronics store. He discovered the suspect vehicle in the

parking lot of a nearby convenience store, and saw Harris standing near

the front of the vehicle with another suspect, James Filaan; a third

suspect, Louis Valdevia, was sitting inside the vehicle. As Harris, on

Rucker’s command, started backing toward another officer for a pat-

down search, a loaded .38 caliber revolver fell from his waistband.

Harris was arrested for carrying a concealed weapon and attempted

burglary of the electronics store. Valdevia and Filaan were also arrested

at that time. Rucker further testified that Harris and Valdevia were later

charged with kidnapping Filaan and with attempted robbery of the

convenience store. Rucker testified that he believed Filaan had been

kidnapped based on his observation that Filaan was in fear and almost

hysterical at the time of the arrest. Harris was subsequently convicted

of robbery, burglary, and two counts of attempted burglary.

On cross examination by defense counsel, Rucker stated that, after

being arrested, Filaan, who was at that time suspected in connection

with another felony, told police he had been kidnapped by Harris and

Waldevia and that the only reason he participated in the attempted

burglary and robbery was because they forced him to. Although Rucker

believed Harris had kidnapped Filaan, Harris was acquitted of the

kidnapping charge.

The fact that Harris had been acquitted on the kidnapping charge did

not preclude the State’s evidentiary use of these facts at the punishment

phase of his capital murder trial. Although due process requires the

application of collateral estoppel, Ashe v. Swenson, 397 U.S. 436

(1970), that doctrine “does not preclude [the State] from relitigating an

issue wher. it is presented in a subsequent action governed by a lower

standard of proof.” Dowling v. United States, 493 US. 342, 349

For the first time in this Court, Harris also articulates a Sixth Amendment

claim based on Apprendi v. New Jersey, $30 U.S. 466 (2000), and Ring v. Arizona, 536

U.S. 584 (2002).

2

(1990).” In Dowling, this Court rejected a comparable due process

challenge involving the government’s evidentiary use — for the purpose

of establishing Dowling’s identity as the perpetrator of the charged

offense — of an extraneous offense of which he had been acquitted. /d.

at 352-54. The Court declined to extend principles of double jeopardy

and due process to exclude “relevant and probative evidence . . . simply

because it relates to alleged criminal conduct for which a defendant has

been acquitted.” Jd. at 348.

The rationale of Dowling applies with equal force here. “There are

any number of possible explanations for the jury’s acquittal verdict at

[{Harris’] first trial.” Dowling, 493 U.S. at 352. The mere fact that the

California jury, for whatever reason, determined that the prosecution

had failed to prove, beyond a reasonable doubt, the elements of

kidnapping does not render the challenged evidence any less relevant to

the capital-sentencing determination. Evidence that Harris tried to

coerce another individual to commit robbery, even if such coercion did

not amount to kidnapping, is indisputably relevant to end probative of

Harris’ propensity for future violent conduct. Moreover, Harris’ jury

was informed fully about the circumstances of the kidnapping charge

(including the fact that Filaan was originally considered a co-defendant

and was at that time wanted in connection with another felony) and the

fact that Harris was acquitted of the kidnapping charge. It was

essentially up to the jury to determine whether Rucker’s testimony

concerning the kidnapping charge had any bearing on its answers io the

punishment special issues.

Harris’ belated reliance upon Ring v. Arizona, 536 U.S. 584 (2002),

and Apprendi v. New Jersey, 530 U.S. 466 (2000), is unavailing. As an

initial matter, because Harris’ case is on collateral review, he is barred

from relying upon the rules announced in Ring and Apprendi well after

his conviction became final. Teague v. Lane, 489 U.S. 288 (1989).

Furthermore, the Teague bar aside, Ring and Apprendi are inapposite.

In Ring, the Court held that “[i]f a State makes an increase in a

defendant’s authorized punishment contingent on the finding of a fact,

that fact — no matter how the State labels it —- must be found by a jury

beyond a reasonable doubt.” 536 U.S. at 602 (citing Apprendi, 530 U.S.

23 At the punishment phase of a Texas capital murd.r trial, while the statutory

special issues must be proved beyond a reasonable doubt, extrancous offenses offered

to prove the special issues do not themselves have to be proved beyond a reasonable

doubt.

2.

at 482-83) (emphasis added). Unlike the sentencing factors at issue in

Ring, the prior kidnapping charge was neither “essential” nor

“necessary” for imposition of the death penalty in Harris’ case, and thus

cannot be characterized as an “elemznt” of the sentence for Sixth

Amendment purposes.” The lower courts correctly denied relief on this

claim, and certiorari review should also be denied.

IV. The Punishment-phase Charge Permitted Jury Consideration

of Evidence That the Victim Shot First.

Harris next claims that the punishment charge precluded jury

consideration of evidence that Mark Mays fired his weapon first.

Clearly, as the court of appeals held, the jury was permitted .o consider

this evidence when deliberating the third special issue submitted at

punishment: “Was the conduct of the defendant in killing the deceased

unreasonable in response to the provocation, if any, by the deceased?”

The district court’s contrary holding was based on an unwarranted

extension of this Court’s holding in Penry v. Johnson, 532 U.S. 782

(2001) (Penry I), and a faulty construction of the special issue, which

is supported by neither Texas law nor the record in this case.

A. Harris’ jurors were not directed to violate their oaths to

give effect to mitigating evidence, therefore, Penry II is

inapposite.

Harris relies on this Court’s recent opinion in Penry I] to support his

claim that the third special issue did not provide an effective means for

consideration of this evidence. However, that reliance is misplaced. In

Penry II, jurors were given the same three special issues submitted in

this case. 532 U.S. at 788-789. They were also given a supplemental

“nullification instruction” directing jurors to answer any special issue

in the negative — even if the evidence did not support a negative answer

— if they believed the mitigating circumstances warranted a life

sentence. Jd. at 789-790. The Court held that the instructions failed to

provide an adequate vehicle for the jury to make a reasoned moral

response to Penry’s evidence of mental retardation and childhood abuse:

“Additionally, Harris’ challenge stands in sharp contrast to the challenges

raised in Ring and Apprendi: Harris challenges an evidentiary ruling, not a Statutory

scheme.

-24-

Here . . . it would have been both logically and ethically

impossible for a juror to follow both sets of instructions.

Because Penry’s mitigating evidence did not fit within the

scope of the special issues, answering those issues in the

manner prescribed on the verdict form necessarily meant

ignoring the command of the supplemental instruction. And

answering the special issues in the mode prescribed by the

supplemental instruction necessarily meant ignoring the verdict

form instructions. Indeed, jurors who wanted to answer one of

the special issues falsely to give effect to the mitigating

evidence would have had to violate their oath to render a “true

verdict.”” TEX. CRIM. PROC. ANN., art. 35.22 (Vernon 1989).

The mechanism created by the supplemental instruction

thus inserted “an element of capriciousness” into the sentencing

decision, “making the jurors’ power to avoid the death penalty

dependent on their willingness” to elevate the supplemental

instruction over the verdict form instructions. Roberts v.

Louisiana, 428 U.S. 325, 335 (1976) (plurality opinion).

Id. at 799-800. The charge submitted in Harris’ case does not create the

same dilemma. Jurors in Harris’ case were not instructed to violate their

oaths to give effect to evidence that the victim shot first. They were not

directed to answer a special issue falsely to arrive at a preferred

sentencing decision. Rather, they were instructed, consistent with then-

existing Texas law, to answer three special issues according to the

evidence presented. As the court of appeals concluded, Penry II does

not require that Harris’ death sentence be vacated.

B. Neither Texas law nor the record in this case supports

Harris’ assertion that jurors believed they were

precluded by their rejection of the voluntary

manslaughter defense at the guilt-innocence phase from

answering the third special issue negatively.

Furthermore, even if the Court’s narrow holding in Penry II could

be extended to apply to a case where jurors were not required to violate

their oaths in order to give effect to a capital defendant’s mitigating

evidence, a negative answer to the third special issue is not inconsistent

with the jury’s rejection of the voluntary manslaughter defense at the

guilt-innocence phase. Harris’ construction of the third special issue has

-25-

absolutely no support in either Texas case law or the record in this

case.

The Texas courts’ construction of the third special issue clearly

defines the provocation inquiry more broadly than the guilt-innocence

inquiries of self defense and voluntary manslaughter. In Jurek v. Texas,

this Court upheld the former Texas capital sentencing scheme, stating

that “the constitutionality of the Texas procedures turns on whether the

enumerated questions allow consideration of particularized mitigating

factors.” 428 U.S. 262, 272 (1976). The Jurek Court discussed the

second special issue in depth, but had only this to say about the first and

third special issues:

The Texas Court of Criminal Appeals has not yet construed the

first and third questions. . . thus it is as yet undetermined

whether or not the jury’s consideration of those questions

would properly include consideration of mitigating

circumstances. In at least some situations the questions could,

however, comprehend such an inquiry. For example, the third

question asks whether the conduct of the defendant was

unreasonable in response to any provocation by the deceased.

This might be construed to allow the jury to consider

circumstances which, though not sufficient as a defense to the

crime itself, might nevertheless have enough mitigating force to

avoid the death penalty .... We cannot, however, construe the

Statute; that power is reserved to the Texas courts.

Id. at 272 n.7 (emphasis added).

**Alternatively, even if the third special issue did not provide an adequate

vehicle, each of the first two special issues provided a means for the jury to consider

evidence that the victim shot first. If the jury believed that, in the heat of a gun battle

initiated by Mays, Harris was “panicked, scared” and that “the events happened quickly,

that he did not know what he was thinking at the time, and that he did not know what

to do” (1 R 112), the jury could have answered “no” to the deliberateness inquiry of the

first special issue. In fact, Harris’ trial counsel made this argument to the jury at the

punishment phase. 17 SR 694-698 (urging jury to answer first special issue “no” based

on “moving gun battle” between Harris and Mays). Likewise, if the jury believed that

Mays provoked Harris’ gunfire, “it could have given effect to [the] provocation by

finding that, ordinarily, absent such provocation, [Harris] would be non-violent. Such

an understanding would support a negative response to the second issue on future

dangerousness.” White v. Collins, 959 F.2d 1319, 1324 (Sth Cir. 1992). See also Ex

parte Harris, 825 S.W.2d 120, 121-22 (Tex. Crim. App. 1991) (holding that second

special issue provided adequate vehicle for consideration of evidence that Mays shot

first).

-26-

A year later in Brown v. State, the Texas court rejected a

defendant’s claim that the provocation issue asks no more than that the

jury reconsider its earlier decision that the killiag was murder rather

than voluntary manslaughter. 554 S.W.2d 677, 678-679 (Tex. Crim.

App. 1977). And in Evans v. State, the court essentially adopted the

dicta in Jurek to reverse a death sentence based on the trial court’s

failure to submit the third special issue to the jury in light of evidence

raising an imperfect self-defense claim. 601 S.W.2d 943, 945-947 (Tex.

Crim. App. 1980). The Texas court acknowledged this precedent in

Harris’ direct appeal when it assumed that he was entitled to submission

of the third special issue despite its holding that he was not entitled to

an instruction on voluntary manslaughter at the guilt-innocence phase.

784 S.W.2d at 10-11.

Thus, the Texas courts have construed the third special issue to

permit jury consideration of evidence of provocation that, while

mitigating, would not support a claim of self defense or voluntary

manslaughter at the guilt-innocence phase. It necessarily follows that,

under Texas law, the findings required to support a voluntary

manslaughter defense are greater than the findings required to answer

the third special issue “no.” Therefore, pursuant to Texas law, Harris’

jury could logically reject the voluntary manslaughter defense at the

guilt-innocence phase, yet nonetheless answer the third special issue

“no.”

Furthermore, the record in this case belies any claim that Harris’

jury believed it was precluded from answering the third special issue

“no” in light of its prior rejection of the voluntary manslaughter defense.

Harris’ trial counsel specifically informed jurors during punishment-

phase argument that their guilty verdict did not foreordain an affirmative

answer to the third special issue:

If your guilty verdict in this case answered [the provocation

special issue], the Court would not even have to submit a

question. If guilty of Capital Murder meant Number Three

should be, “Yes,” there would be no question.

In light of this record, there is no reasonable likelihood that the jury

°See also Cantu v. Collins, 967 F.2d 1006, 1013 (Sth Cir. 1992) (rejecting

claim of entitlement to voluntary manslaughter instruction despite claimed

“inconsistency” between prosecutor’s acquiescence to submission of third special issue

at punishment and opposition to voluntary manslaughter instruction at guilt-innocence

phase).

27.

believed it was barred from considering evidence that Mays shot first.

V. Harris’ Jury Was Not Precluded from Considering Any

Constitutionally Relevant Mitigating Evidence at the

Punishment Phase of Harris’ Trial.

Finally, Harris argues that his jury was precluded from considering

and giving mitigating effect to evidence of Harris’ history of alcoholism

and intoxication at the time of the offense in violation of the Eighth

Amendment. See Penry v. Lynaugh, 492 U.S. 302 (1989). However,

Harris presented no evidence at trial that he was intoxicated when he

murdered Mark Mays; therefore, this evidence cannot be the basis of an

Eighth Amendment claim. Furthermore, Harris’ evidence of a history

of alcoholism is simply not constitutionally relevant in the absence of

evidence of intoxication at the time of the offense. But in any event,

even assuming the evidence were constitutionally relevant, the special

issues provided an adequate vehicle for jury consideration of that

evidence.

A. There is no evidence that Harris was intoxicated when

he murdered Mark Mays, therefore, evidence of Harris’

history of alcoholism is not constitutionally relevant.

As the Texas Court of Criminal Appeals found on state habeas

corpus review, “it is undisputed that [Harris] is an alcoholic, however,

there is no evidence in the record that [Harris] was drinking at the time

of the instant offense.” Ex parte Harris, 825 $.W.2d 120, 122 (Tex.

Crim. App. 1991). This fact finding is entitled to the presumption of

correctness of former 28 U.S.C. § 2254(d) and must be deferred to on

federal habeas corpus review. Harris fails to acknowledge, much less

rebut, this finding.”’ In fact, in connection with a separate claim in the

“In the district court, Harris cited as evidence that he was intoxicated at the

time of the offense the trial testimony of Nancy Petkovsek that “during the commission

of all crimes . . . [Harris] was under the influence of an intoxicating beverage.” See |

R Ilo. However, this citation was taken out of context. Petkovsek clarified her trial

testimony at the evidentiary hearing in the court below, stating that she was referring to

Harris’ intoxication at the time of prior offenses and not at the time of the instant

offense. 5 R 57-59. The same was true of Harris’ citation to the closing punishment-

phase arguments in the court below. See 1 R Ilo. When considered in context, the

arguments were clearly referring to Harris’ claim that he was intoxicated when he

-28- -

court below, Harris appeared to concede this lack of evidence, faulting

trial counsel for their failure to present it.” Harris’ Brief at 35.

A Penry claim cannot be based on evidence that was not offered at

trial. Although “the sentencer must be allowed to consider in mitigation

‘any aspect of the defendant’s character or record and any circumstances

of the offense that the defendant proffers as a basis for a sentence less

than death,’” “[nJothing in the Constitution obligates state courts to give

mitigating evidence instructions when no evidence is offered to support

them.” Delo v. Lashley, 507 U.S. 272, 275-277 (1993) (quoting Lockett

v Ohio, 438 U.S. 586, 604 (1978)) (emphasis of Court). Therefore,

Harris clearly is not entitled to relief on his Penry claim based on his

assertion, which was not made to the jury, that he was intoxicated when

he murdered Mark Mays.

Moreover, Harris’ evidence of alcoholism, which was presented at

trial,”’ loses any constitutional relevance it might otherwise have had in

light of the fact that there is no evidence Harris was intoxicated when he

committed capital murder. The basic concern of Penry is “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.” Penry, 492

U.S. at 319. It was undisputed at trial that Harris suffered from

committed each of the prior offenses offered by the State at the punishment phase.

2*Harris based his claim of ineffective assistance of counsel on the testimony

of Jay Swango at the evidentiary hearing in the district court that he and Harris had

drunk about a case and a half of beer over the course of several hours on August 31,

1985. 9R 48. However, Swango testified that he last saw Harris at about 6:00 or 6:30

that afternoon; the instant offense occurred at approximately 2:30 or 3:00 a.m. on

September 1, 1985. 9 R 48-52. Thus, any assertion based on Swango’s post-conviction

testimony that Harris was intoxicated when he killed Mark Mays is merely speculative,

and absent some direct evidence that Harris was intoxicated at the time of the offense,

there is no evidence to support his claim. Furthermore, Harris himself took the stand on

his own behalf at the guilt-innocence phase of his trial and related to the jury his version

of the events, yet not once during his description of the offense did he suggest that he

was intoxicated at the time.

2°Harris presented the testimony of Evelyn Powell, a counselor at the Orange

County Council on Alcoholic who treated Harris in 1985 after he was referred to her by

his parole officer. Powell testified that Harris was an alcoholic. According to Powell,

for five months Harris met with her weekly for an hour, attended Alcoholics Anonymous

meetings, and had his alcoholism under control. Powell testified further, based on her

training and years of experience, that Harris could, with the proper training, counseling,

and effort, bring his alcoholism under control.

-29.

alcoholism. But the mere fact that Harris is an alcoholic does not reduce

his culpability for Mays’ murder. This evidence simply has no

relevance, and thus has no mitigating value, to Harris’ commission of

capital murder. It stands to reason that the Eighth Amendment would

not compel its consideration.

B. In any event, the special issues provided an adequate

vehicle for consideration of Harris’ evidence of

alcoholism.

But even assuming the evidence were constitutionally relevant, the

jury could give mitigating effect to that evidence through its answers to

the special issues. This type of evidence can be given expression via the

first special issue, which asks the jury to evaluate the deliberateness of

the defendant’s actions, as the Fifth Circuit has repeatedly held.°°

Furthermore, the second special issue”! provided a constitutionally

adequate vehicle for jury consideration of Harris’ alcoholism as that

evidence was presented and argued at trial. The testimony of Nancy

Petkosek and Evelyn Powell was clearly offered in an attempt to

persuade the jury that Harris’ prior violent history was necessarily, even

ifnot demonstrably, attributable to his alcoholism and intoxication when

he committed those offenses and that Harris had the capacity to control

his alcoholism and live as a non-violent person except when drinking.

Based on her training and years of experience, Powell opined that Harris

could bring his alcoholism under control with proper training,

counseling, and effort. Petkovsek testified that a death sentence in

Harris’ case was inappropriate because he still had a contribution to

make. Defense counsel argued:

Let’s add some things to that [previous argument that you

cannot predict future dangerousness]. The organic substance

abuse, the alcohol abuse.

Ladies and gentleman, two women came in on behalf of the

See, e.g., Tucker v. Johnson, 115 F.3d 276, 282 (Sth Cir. 1997); Lackey v.

Scott, 28 F.3d 486, 487 (Sth Cir. 1994); James v. Collins, 987 F.2d 1116, 1121 (Sth Cir.

1993); Cordova v. Collins, 953 F.2d 167, 170 (Sth Cir. 1992); Kelly v. Lynaugh, 862

F.2d 1126, 1133 (Sth Cir. 1988).

*'The second special issue asked: “Is there a probability that the defendant will

commit criminal acts of violence that will constitute a continuing threat to society?”

ee

-30-

defense, Mrs. Powell and Miss Petkovsek. Both said these

offenses were committed under the influence of alcohol, and if

there’s violence it’s caused by that violence.

As presented and argued, there is not a reasonable likelihood that the

jury would have understood the evidence to be beyond its effective

reach in answering the second special issue.” Certiorari review should

be denied on this issue.

CONCLUSION

For the foregoing reasons, the Director respectfully requests that the

petition for writ of certiorari be denied.

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

BARRY R. McBEE

First Assistant Attorney General

JAY KIMBROUGH

Deputy Attorney General

for Criminal Justice

*GENA BUNN

Chief, Postconviction

Litigation Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 936-1600

(512) 320-8132 (Fax)

* Counsel of Record Attorneys for Respondent

*2See James v. Collins, 987 F.2d at 1121 (noting that where defendant

presented evidence concerning available alcohol treatment plans, jury could consider

evidence of intoxication/alcohol abuse in answering second special issue).

Supreme Court, U.S.

(%) FILED

MAY 29 2003

OFFICE OF THE CLERK

No. 02-1433

IN THE

Supreme Court of the United States

DAVID RAY HARRIS,

Petitioner

vS.

JANIE COCKRELL, 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

REPLY TO RESPONDENT?’S BRIEF IN

OPPOSITION

Solace Kirkland Southwick Thomas M. Farrell*

ANDREWS & KURTH L.L.P. *Counsel of Record

600 Travis Street, Suite 4200 NICKENS, KEETON,

Houston, Texas 77002 LAWLESS, FARRELL &

(713) 220-4260 FLACK, L.L.P.

600 Travis, Suite 7500

Houston, Texas 77002

(713) 571-9191

Attorneys for Petitioner,

David Ray Harris

CAPITAL CASE

QUESTIONS PRESENTED

Did the Fifth Circuit properly disregard defense

counsel’s failure to investigate and present available

mitigation evidence, even though (a) the court viewed

the omitted evidence in isolation from _ the

circumstances of the crime and from the mitigating

evidence that was presented to the jury, and (b) the Fifth

Circuit’s decision conflicts with the results reached, on

closely analogous facts, by many other circuits?

At a capital sentencing hearing, can the State

constitutionally use, in its efforts to convince the jury to

find the aggravating circumstances required as a

prerequisite to the death penalty, evidence of a crime for

which a prior jury had acquitted the defendant?

Can a death sentence be upheld, consistent with Penry

v. Lynaugh, 492 U.S. 302 (1989), and Penry v. Johnson,

532 U.S. 782 (2001), when the jury was precluded from

considering the full mitigating impact of undisputed

evidence that the victim initiated the exchange of gun

fire that resulted in his'death and that the defendant did

not fire any shots until after himself being wounded in

the neck and shoulder?

Can a death sentence be upheld, consistent with Penry

v. Lynaugh, 492 U.S. 302 (1989), when the jury was

precluded from considering the full mitigating impact of

undisputed evidence that the defendant suffered from

severe alcoholism and drug addiction (and that all of the

prior criminal activity proffered by the State at the

sentencing hearing was committed under the influence

of drugs or alcohol)?

il

TABLE OF CONTENTS

QUESTIONS PBT savin scsi Sei eswinevennsncnsessonvesnans i

PRE LTE Cee A BR cen resieroryttitnnassnninitiioriscnsinsnenmmetvanesvanie il

TABLE OF AT TREE ee cvsevesssccissacessivesvsienssusssonsosvsonsees lil

REPLY TO RESPONDENT’S BRIEF IN OPPOSITION ....1

A. This case should be held pending resolution of

Witenes Ci TINUE nisi civic ickiinkinti de binitcrcistivernensccone ]

B. This Court granted certiorari in Banks v. Cockrell

on a question identical to one raised in Harris’s

petition for writ Of CETtIOTAT .............eeeeseeesseeseeseees l

C. Respondent ignores trial counsel’s crucial error of

relying solely on a strategy that was unsupported

OE NE INE ein wiiciiilbtid nica eiviendansinicmaaalagianbitasevenes 6

D. The third special issue conflicts with the jury’s

failure to find voluntary manslaughter..................... 11

COATS osc sscavesissiidadsevivsinesssncineeriieadaibaitentulgavendensensen 13

ili

TABLE OF AUTHORITIES

CASES

Banks v. Cockrell,

No. 01-40058 (Sth Cir. 2002) (unpublished

opinion), cert. granted, 123 S.Ct. 1784 (2003)

(No. 02-8286) (April 21, 2003)... eeeeeeee 1, 2, 6, 13

Battenfield v. Gibson,

Be Oe BAAD CR Cie, BOON) iscsicsvissiosecsciedeccccsiveivascen 10

Clemons v. Mississippi,

ESR EE OmRONGS OT A ne REE 3

Coleman v. Mitchell,

Pe nF CCAR, DOD) a vcnsivicsidnicsssecacnsvcccinctnccsniorre 10

Evans v. State,

601 S.W.2d 943 (Tex. Crim. PD. TI es cinsissinnicdictinnns 11

Harris v. Cockrell,

Pee Ae BO CIO CE, DODD) oan ceisceccuscicocessvecovecosssssvies 2,6

Harris v. State,

784 S.W.2d 5 (Tex. Crim. App. 1989)........ccccccscsceseeees 8

Karis v. Calderon, a |

ee ET I Ge Din ves cnversencvenccecsvevecssussertecss 10

Lindh v. Murphy,

TE iv vensssicarsensesvsvnsicsnonsoikaseesserssunssenvecsnees 7

Moore v. Johnson,

ce a 10

iV

Penry v. Johnson,

De as Fe GED exivienssnsatonsansoremmeseineneenscaneinsactameest 1, 13

Penry v. Lynaugh,

A A Be CED viticessnssxinesvnniontspayenmnanatierinpleniisaapmadutnh 1

Perillo v. Johnson,

Fe RE Ca Ce, Fa avncnneievsessicekosesrvrssensecnensviontenans 7

Self v. Collins,

DTD PDe 1 IDE Ga, Bi aces cisnastinecenensprnsencinesnbsovincce 7

Silva v. Woodford,

Bie O8 Ges Ce CE, Ba Pi sesanevonsnsenvnicssnracsnoentcineinanes 10

Strickland v. Washington,

GED TEs Gee CD restennnceinntcieiacresnnasiineiesaantnnns ay ee

Wiggins v. Corcoran,

288 F.3d 629 (4th Cir. 2002), cert. granted, 123

S.Ct. S56 C200Z) CO. D2-S1 TE) WO ..cccecrsvecccocesescesevereses 1,13

Williams v. Taylor,

ee Cs I i iawtnsdtttcienisintatevinningaadl 2, 3, 5,6

Woodson v. North Carolina,

GOS OED, Fare Cee PE ivcrettincinssevsinsincacincachnianenaioeapipiicinieninan 10

STATUTES

2B USC. § Z2SAS) Clea. EDIT) ncaa osm ennsnrnonerm 7

REPLY TO RESPONDENT’S BRIEF IN OPPOSITION

A. This case should be held pending resolution of

Wigemnsand Banks.

As set forth in Harris’s petition for writ of certiorari, the

Court granted certiorari in Wiggins v. Corcoran, 288 F.3d

629 (4th Cir. 2002), cert. granted, 123 S.Ct. 556 (2002) (No.

02-311) to address, among other things, the Fourth Circuit’s

application of Strickland v. Washington, 466 U.S. 668 (1984)

in a way that makes counsel’s performance virtually

unchallengeable. The Fifth Circuit’s approach to the

question of ineffective assistance of counsel had the same

effect in this case, making this Court’s resolution of Wiggins

potentially critical to the resolution of the questions in this

case.

Since Harris filed his petition for writ of certiorari, this

Court granted certiorari in Banks v. Cockrell, No. 01-40058

(Sth Cir. 2002) (unpublished opinion), cert. granted, 123

S.Ct. 1784 (2003) (No. 02-8286) (April 21, 2003). Certiorari

was granted in Banks te address a question that is also raised

in Harris’s petition.

The Court’s decision to grant certiorari in Banks,

coupled with its prior grant in Wiggins, strongly suggest that

certiorari should be granted in this case or, at a minimum,

that consideration of Harris’s petition should be held pending

resolution of Banks and Wiggins.

B. This Court granted certiorari in Zazks v. Cockrell

on a question identical to one raised in Harris’s

petition for writ of certiorari.

On April 21, 2003, this Court granted certiorari in Banks

v. Cockrell on questions one, two and three raised in the

petition. 123 S.Ct. 1784. Question number two asks: “Did

the Fifth Circuit act contrary to Strickland v. Washington,

466 U.S. 668 (1984), and Williams v. Taylor, 529 U.S. 362

(2000), where it weighed each item of mitigating evidence

separately and concluded that no single category would have

brought a different result at sentencing without weighing the

impact of the evidence collectively?”

In his petition for writ of certiorari, David Ray Harris

raised the following question: “Did the Fifth Circuit properly

disregard defense counsel’s failure to investigate and present

available mitigation evidence, even though (a) the court

viewed the omitted evidence in isolation from the

circumstances of the crime and from the mitigating evidence

that was preseated to the jury, and (b) the Fifth Circuit’s

decision conflicts with the results reached, on closely

analogous facts, by many other circuits?”

Thus a question raised in both petitions is the same: did

the Fifth Circuit conduct an erroneous analysis of harm

under Strickland when it failed in both Banks and Harris v.

Cockrell, 313 F.3d 238 (Sth Cir. 2002) to weigh the

mitigating evidence in light of all of the evidence available

in mitigation or aggravation? There can be little doubt that if

this Court determines that the Fifth Circuit’s analysis in

Banks ran afoul of Strickland, its analysis in this case was

likewise erroneous.

In this case, as fully: set forth in the petition for

certiorari, the Fifth Circuit examined the mitigating evidence

raised in the habeas proceeding without considering at the

same time the evidence that was offered in mitigation at trial

or the facts and circumstances of Harris’s crime.

The Fifth Circuit’s error in both Banks and this case is

very similar to one that this Court identified in Williams v.

Taylor, 529 U.S. 362 (2000). In that case, the Virginia

Supreme Court examined mitigation evidence offered at the

habeas hearing, but it did not examine that evidence in light

of all of the available mitigating evidence. This Court found

that the state court’s “prejudice determination was

unreasonable insofar as it failed to evaluate the totality of the

available mitigation evidence -- both that adduced at trial,

and the evidence adduced in the habeas proceeding in

reweighing it against the evidence in aggravation.” . Jd. at

397-8 (citing Clemons v. Mississippi, 494 U.S. 738, 751-52

(1990).

In its brief in opposition, Respondent does not address

this error, even though it was fully argued in Harris’s

petition. Instead, Respondent conducts its own purported

balancing of the relative weight of the mitigating and

aggravating evidence. In its argument, however, Respordent

commits the same error as the Fifth Circuit — it completely

omits a discussion of the facts and circumstances of Harris’s

crime or any real analysis of the evidence actually offered in

mitigation at trial.

A proper reweighing of all of the evidence in mitigation

as mandated by Williams, against all of the evidence in

aggravation, makes clear that counsel’s error at the

punishment phase was harmful and that “there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. at 694.

In the habeas proceedings, Harris presented mitigating

evidence suggesting a reasonable probability that a jury

would have made a non-death determination in his case.

Harris produced several affidavits of non-family members

who describe the emotional abuse he suffered from his

father, the effect of his closest brother’s sudden death at age

four, the trauma of being blamed by his father for the death,

the stigma associated with childhood rumors of being gay, as

well as being homosexually gang raped when he was thirteen

years old, having suffered repeated brain injuries requiring

hospitalization, and serious substance and alcohol abuse

since his early teens. In addition to this enumeration of the

mitigation evidence presented post-conviction, there was

evidence that Harris’s prison record showed steady

improvement and that he had _ received several

commendations during a prior imprisonment.

At trial, Harris introduced mitigating evidence including

his youth at the time of the offense, his status as a severe

alcoholic, his cooperation with the police, his intoxication at

the time of the crime, his intoxication during all of the prior

extraneous offenses offered by the State at punishment, his

genuine remorse and his sincere efforts to overcome his

alcoholism and drug addiction.

In an effort to avoid conducting the necessary balancing,

Respondent makes two arguments: first, that the witnesses

proffered at the habeas hearing would have been subject to

cross-examination, and second, that the information

regarding Harris’s prison behavior was mixed. In support of

the first argument, Respondent points to no significant

aggravating evidence that might have been elicited during

cross-examination that was not already in the record.'

Respondent’s argument regarding Harris’s prison record is

' Respondent contends that additional aggravating evidence

could have been elicited from these witnesses, to “reveal that

Harris was even more dangerous than he already appeared.”

Specifically, Respondent refers to purported evidence of an

incident in which a fifteen-year-old Harris allegedly “stole” his

parents’ car — hardly evidence that Harris was more “dangerous”

than he appeared. Respondent also refers to evidence that Harris

burglarized houses in the neighborhood, but evidence of

neighborhood burglaries was presented to the jury during the

punishment phase.

similarly unavailing. This Court recognized in Williams that

all the additional evidence offered need not be favorable to

the petitioner to support a finding of prejudice. Williams,

529 U.S. at 396. Furthermore, Respondent acknowledges

that Harris’s jury was informed of the most serious negative

aspects of his prison record. Respondent’s Brief in

Opposition at 11. Thus, it was crucial that the jury be

informed of the favorable aspects of Harris’s stay in prison.

Given that the Respondent’s general challenges to

Harris’s mitigating evidence are unavailing, the issue is

whether the mitigating evidence would have made a

difference in the jury’s sentencing determination. To

evaluate that issue, the relative strengths of the evidence in

aggravation must be compared to the evidence in mitigation.

Williams, 529 U.S. at 397.

As set forth above, the available evidence in mitigation

of Harris’s sentence was quite extensive. In contrast, the

evidence in aggravation was relatively weak. — Most

significantly (although not even considered by the Fifth

Circuit), the circumstances of Harris’s offense were not

particularly brutal when compared to other cases, including

Williams. The allegations against Harris involved the

abduction of a woman, but it is undisputed that Harris

abandoned the abduction and did not physically harm the

woman in any way, despite the possibility that she could be a

witness against him. As to the killing of Mays, the evidence

is again undisputed that Harris did not shoot Mays until

Mays fired first and until after Harris had been seriously

wounded. In contrast, Williams killed an unarmed,

defenseless, intoxicated man, leaving him “grasping for

breath.” Williams, 529 U.S. at 368.

Harris’s prior criminal record is much less extensive

than that of Williams. In Williams, the prosecution

introduced written confessions, including one in which he

confessed to attacking an elderly woman leaving her in a

vegetative state from which she was not expected to recover.

The evidence in mitigation was quite similar to Harris’s case,

except that the parental abuse was somewhat more acute in

Williams’s case.

This Court in Williams conducted a balancing of all of

the evidence in mitigation against that in aggravation and

found that counsel’s failure to introduce the mitigating

evidence prejudiced Williams within the meaning of

Strickland. In this case, by contrast, the Fifth Circuit did not

conduct the required balancing. As it did in Banks, the Fifth

Circuit in this case simply reviewed some of the mitigating

evidence without looking at the record as a whole to

determine whether counsel’s errors were prejudicial.

Had the Fifth Circuit conducted the required balancing,

it would have been forced to conclude that Harris was

prejudiced by his counsel’s errors. A comparison of the

evidence in this case to the evidence in Williams makes clear

that counsel’s failure to introduce significant available

evidence in mitigation of Harris’s sentence deprived Harris

of “a fair trial, a trial whose result is reliable.” Strickland,

466 US. at 687.

C. Respondent ignores trial counsel’s crucial error of

relying solely on a strategy that was unsupported by

the law.

Respondent takes issue with the district court’s finding

that Harris’s trial counsel’s performance was deficient.’

? The Fifth Circuit assumed that the finding of deficient

performance was valid and based its holding on a determination

that counsel’s deficient performance had not prejudiced Harris.

Harris, 313 F.3d at 243.

a

Respondent challenges the finding on both procedural and

substantive grounds. First, Respondent contends that the

district court erred in finding that Harris had overcome the

presumption of correctness enjoyed by the state-court fact

finding that counsel’s performance was reasonable. Second,

Respondent argues that Harris’s counsel’s performance was

not deficient because “‘the decision as to what evidence to

produce or not present at trial was made intentionally,

knowingly and voluntarily by [Harris]’” Respondent’s Brief

in Opposition at 16 (quoting state habeas court’s fact

findings). In her arguments, Respondent ignores counsel’s

critica] mistake: relying solely on a defense strategy that was

legally unavailable.

A presumption of correctness applies to any background

factual findings by the state court. See Perillo v. Johnson, 79

F.3d 441, 446 (Sth Cir. 1996). But, that presumption is

overcome when the fact findings are “not fairly supported by

the record,” 28 U.S.C. § 2254(d)(8) (later amended by 28

U.S.C. § 2254(d) (Supp. 1997) (“AEDPA”))>, or when the

petitioner establishes by “convincing evidence” that they are

erroneous. Self v. Collins, 973 F.2d 1198, 1204 (Sth Cir.

1992). The fact findings at issue here are not fairly

supported by the record, and Harris established by

convincing evidence that they were error.

Contrary to Respondent’s arguments, the presumption’

does not protect the state habeas court’s determinations that

“[a]ll matters were fully and completely conveyed to and

discussed with [Harris]” or that “the decision as to what

evidence to produce or not present at trial was made

intentionally, knowingly and voluntarily by [Harris].” The

> The State and Harris agree that the prior version of 28

U.S.C. § 2254(d) applies in this case. See Lindh v. Murphy, 521

U.S. 320, 336 (1997).

record does not fairly support either of these conclusions,

and Harris presented convincing evidence at the evidentiary

hearing demonstrating that they were error.

Harris’s counsel attempted to explain their failure to

present evidence in mitigation by contending that Harris had

instructed them to focus solely on defending at the guilt-

innocence phase of the trial and to present no evidence at the

punishment phase. The sole defensive strategy at the guilt-

innocence phase was to convince the jury that because Harris

fired at Mays only after Harris himself had been wounded

Harris was guilty of the lesser-included offense of voluntary

manslaughter and not of murder. On direct appeal, however,

the Texas Court of Criminal Appeals held that Harris was

not even entitled to an instruction regarding voluntary

manslaughter. Harris v. State, 784 S.W.2d 5, 10 (Tex. Crim.

App. 1989).

In other words, according to the highest criminal court

in Texas, Harris’s purported “strategy” for the trial — to focus

on the guilt-innocence phase and get a _ voluntary

manslaughter verdict — was foreclosed as a matter of law.

Effective trial counsel should have realized and informed

Harris that Harris’s purported strategy to focus on the guilt-

innocence phase was not likely to succeed. But, counsel

never informed Harris that his guilt-innocence “strategy”

was legally defective.

Thus, the state court’s fact finding that Harris’s

“decision” regarding the punishment phase was informed is

not fairly supported by the record. Had Harris’s counsel

informed him of the significant risk that his only guilt-

innocence defense was legally foreclosed, his view of the

appropriate strategy for the punishment phase would likely

have been very different. Even assuming that blind

deference to the client’s alleged directive to forego

development of mitigating evidence could ever constitute

effective assistance, it surely cannot when counsel has either

failed to realize, or failed to inform the client, that the

client’s only defensive theory at the guilt-innocence phase

may be unavailable as a matter of law.

The state habeas court’s conclusion that Harris himself

was responsible for counsel’s decision to forego virtually all

available mitigating evidence is also unsupported by the

record and overcome by convincing evidence. As the district

court properly found, Harris’s counsel did not even comply

with Harris’s alleged directives. In fact, Harris’s counsel

conceded in his testimony that he “circumvented” Harris’s

instructions when he put on witnesses during the punishment

phase of the trial:

Q: So, when there were matters that you thought were

sufficiently important with respect to the punishment phase,

you felt free to violate your client’s instructions?

A: I felt like there were things I could do without any help

from David and I tried to do those. Yes, I was

circumventing what he told us.

6 R 185. Accordingly, Harris’s counsel’s decision to forego

investigation and presentation of a full case in mitigation was

not based on Harris’s purported instructions.

Furthermore, the district court properly found that

Harris’s counsel’s performance relative to the punishment

phase of his trial was deficient. Even assuming that Harris

instructed his counsel to present no evidence in mitigation,

such an instruction does not by itself protect counsel’s

performance fror. scrutiny. Any decision to forgo

presentation of mitigating evidence must be both informed

and strategic, since mitigating evidence rises to a

constitutionally important level in determining whether the

10

death penalty is appropriate under an_ individualized

sentencing determination. Woodson v. North Carolina, 428

U.S. 280 (1976). A number of circuits have recognized that

a defendant’s instructions do not necessarily relieve counsel

of the duty to investigate and present mitigating evidence.

See Karis v. Calderon, 283 F.3d 1117, 1136 (9th Cir. 2002);

Silva v. Woodford, 279 F.3d 825, 838 (9th Cir. 2002);

Coleman v. Mitchell, 268 F.3d 417, 447-48 (6th Cir. 2001);

Battenfield v. Gibson, 236 F.3d 1215, 1233 (10th Cir. 2001).

Additionally, Harris’s counsel was deficient in failing

sufficiently to infe7m him regarding the necessity of

mitigating evidence and the potential impact of failing to

present such evidence before acceding to his alleged demand

that no mitigating evidence be presented. Harris was neither

informed of trial counsel’s decision nor of the crucial

importance such a choice portended for sentencing.

“Strategic choices made after less than complete

investigation are reasonable only to the extent that

reasonable professional judgments support the limitations on

investigation.” Moore v. Johnson, 194 F.3d 586, 592 (5th

Cir. 1999). Harris explained that, if anything, the decision

not to present a case in mitigation was not properly weighed

by him, since counsel did not explain its significance.

Harris also reiterated that “conversations regarding the

penalty phase of the trial were virtually nonexistent.” 5 R 94.

Stripped of its cloak of so-called “strategy,” the

performance of Harris’s counsel at the punishment phase

4

Harris testified at the evidentiary hearing as follows:

“And counsel never told me, “Well, we have this,’ or “Your

brother can say this,’ or “Your aunt can say this.’ He never told

me anything like that.” 5 R 98. Harris also testified that

“[counsel] never got into any specifics of why he thought [Harris’s

mother] should take the stand or anything else.” See id.

11

amounted to abandonment of their client. Harris’s attorneys

wholly failed to investigate MHarris’s childhood and

background and failed to provide any compelling evidence

to the jury that Harris should not be put to death. They failed

to undertake this very important aspect of Harris’s defense,

despite that even a minimal effort would have revealed

ample mitigating evidence and despite that there was much

Harris’s counsel did not know about Harris’s background. 6

R 177.

D. The third special issue conflicts with the jury’s

failure to find voluntary manslaughter.

Respondent argues that the third special issue asks a

different question from that asked by the voluntary

manslaughter charge. She relies on the construction given

by Texas courts to the third special issue that she claims

permits “jury consideration of evidence of provocation that,

while mitigating, would not support a claim of self defense

or voluntary manslaughter at the guilt-innocence phase.”

Respondent’s Brief on the Merits at 26. Respondent’s

argument does not address the problem, however.

Regardless of the way Texas courts have construed the third

special issue, the jury receives no information on that

construction. In fact, Texas’s highest criminal court has

recognized that a “literal” reading of the third special issue

would make it applicable only to those situations in which

the offense is voluntary manslaughter and not capital murder.

Evans v. State, 601 S.W.2d 943, 946 (Tex. Crim. App.

1980).

The jury is given no reason not to read the third special

issue “literally.” The third special issue is asked without

additional instruction. The jury cannot possibly be presumed

to understand that there is a difference between the

manslaughter submission and the third special issue. The

12

jury is certainly not informed that evidence sufficient to

support a “no” answer to special issue number three need not

be sufficient to support a “yes” answer to voluntary

manslaughter.

Respondent contends that any jury confusion on this

topic was ameliorated by defense counsel’s argument that a

guilty verdict did not require a “yes” answer to question

number three. There are at least two problems with this

contention. First, defense counsel’s argument, which

Respondent quotes in her brief, is not sufficiently specific to

address the problem. While counsel did argue that the guilty

verdict did not answer the third special issue, he did not

explain that the evidentiary standard for the two questions is

different. He did not provide the jury with any way to

reconcile a “no” answer to the third special issue with their

rejection of the voluntary manslaughter question.

Second, the prosecution’s closing argument implied that

the jury had already decided the third special issue:

They [defense counsel] still want to say, “Let’s

narrow it down. Please, please, please, don’t hold

David Harris accountable for anything, except

shooting back. The gunbattle was over, with this

shot in Mark Mays’ arm. You knew that when you

disregarded the Voluntary Manslaughter Charge,

last Thursday.

This argument plainly suggests that the jury need not

consider the third special issue because it had already

decided the question. The prosecution’s argument made

explicit the flaw in the third special issue.

The third special issue did not provide the jury with an

avenue through which to give effect to the mitigating impact

of the evidence that Mays shot Harris first. To credit

13

Respondent’s argument concerning Texas case law would

require a determination that the jury did not in fact follow the

instructions. A reviewing court is not permitted to rely on

such a determination. Penry v. Johnson, 532 U.S. 782, 799

(2001).

CONCLUSION

For the foregoing reasons and for the reasons set forth in

the petition for writ of certiorari, Petitioner David Ray

Harris respectfully requests that the Court grant the petition.

Alternatively, Harris requests that the Court stay

consideration of this petition pending resolution of Wiggins

v. Corcoran, 288 F.3d 629 (4th Cir. 2002), cert. granted, 123

S.Ct. 556 (2002) (No. 02-311) and Banks v. Cockrell, No.

01-40058 (Sth Cir. 2002) (unpublished opinion), cert.

granted, 123 S. Ct. 1784 (2003) (No. 02-8286) (April 21,

2003).

Respectfully submitted

Nickens, Keeton, Lawless,

Farrell & Flack, L.L.P.

Thomas M. Farrell*

* Counsel of Record

600 Travis, Suite 7500

Houston, Texas 77002

(713) 571-9191

Andrews & Kurth L.L.P.

Solace Kirkland Southwick

600 Travis Street, Suite 4200

Houston, Texas 77002

\ (713) 220-4200

Attorneys for Petitioner,

David Ray Harris

Dated: May 29, 2003