for the Fourth Circuit for the Fourth Circuit for the Fourth Circuit Donald Allen Jones v. WILLIAM CATOE, Commissioner, No. 00-10 South Carolina Department of Corrections

UNPUBLISHED UNPUBLISHED UNPUBLISHED UNPUBLISHED
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT
DONALD ALLEN JONES,
Petitioner-Appellant,
v.
WILLIAM CATOE, Commissioner,
No. 00-10
South Carolina Department of
Corrections; CHARLES CONDON,
Attorney General, State of South
Carolina,
Respondents-Appellees.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
C. Weston Houck, District Judge.
(CA-99-1764-6-12AK)
Argued: February 26, 2001
Decided: May 29, 2001
Before WILKINS, NIEMEYER, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished opinion. Judge Wilkins wrote the opinion,
in which Judge Niemeyer and Judge Luttig joined.
_________________________________________________________________
COUNSEL COUNSEL COUNSEL COUNSEL
ARGUED: ARGUED: ARGUED: ARGUED: Teresa Lynn Norris, CENTER FOR CAPITAL LITIGA-
TION, Columbia, South Carolina, for Appellant. Donald John
Zelenka, Assistant Deputy Attorney General, Columbia, South Caro-

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lina, for Appellees. ON BRIEF: ON BRIEF: ON BRIEF: ON BRIEF: Thomas R. Haggard, Ridgeway,
South Carolina, for Appellant.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION OPINION OPINION OPINION
WILKINS, Circuit Judge:
Donald Allen Jones appeals an order of the district court denying
his petition for a writ of habeas corpus, in which he challenged his
conviction and death sentence for the murder of Ned Plyler, Sr. See
28 U.S.C.A. § 2254 (West 1994 & Supp. 2000). 1111 On appeal, Jones
raises only issues pertaining to his death sentence. For the reasons set
forth below, we affirm the denial of habeas relief.
I.
The following statement of facts is taken from the opinion of the
South Carolina Supreme Court on Jones' direct appeal of his convic-
tions and sentence:
Mr. and Mrs. Ned W. Plyler, Sr., operated a Sealtest dairy
in Lancaster County. [Jones] worked at the dairy while a
teenager. The parties experienced little animosity other than
minor disputes over the amount of [Jones'] paycheck.
On Sunday, October 9, 1983, [Jones] and a friend broke
into a house belonging to the friend's grandfather and stole
a .410 gauge shotgun and shotgun shells. [Jones] told the
_________________________________________________________________
1111 Jones named William Catoe, Commissioner of the South Carolina
Department of Corrections, and Charles Condon, Attorney General of
South Carolina, as Respondents. For ease of reference, we will refer to
Respondents as "the State" throughout this opinion.
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friend that he needed help robbing someone and that he
would give him $25,000 for his aid. He said he planned to
tie the victim and have him write a check payable to[Jones].
On Tuesday, October 11, 1983, [Jones] went to the
Plylers' country home before they arrived and smashed the
glass in a bedroom window. He found a pistol inside and
began shooting the wall in the hallway. He also shot the
Plylers' three dogs, and stole six or seven silver dollars and
some change. He then lay in wait for the Plylers in the
garage.
Geraldine Plyler testified that she and her husband
reached their home at about 5:30 P.M. Mr. Plyler carried
three $100 bills and two checks in his shirt pocket. As he
approached the door of his home, [Jones] appeared suddenly
with a shotgun. He demanded money and shot Mr. Plyler at
close range near the heart. The victim fell forward on his
face in front of his wife. [Jones] produced a pistol,
demanded $79,000, and directed Mrs. Plyler to remove the
money from her husband's pocket. She was unable to do so,
and [Jones] retrieved the money. Mr. Plyler groaned, and
[Jones] shot him in the back of the head. Mrs. Plyler pleaded
with [Jones] not to shoot him again, but he shot him again
in the head.
[Jones] then took Mrs. Plyler into the house and told her
he had always wanted her. He then raped her at gunpoint.
He searched her purse for money and took her into various
rooms of the house, tying her in each room to furniture. She
finally begged him to kill her, but he refused saying he
wanted her alive in the morning to write a check.[Jones]
tied, bound, and gagged her and left. However, he returned
shortly to see whether she had attempted to escape. He then
drove away in the Plyler truck. She freed herself and ran
through the nearby pastures, trying to reach the home of a
nephew. Before she reached there, [Jones] returned and
began driving down the road looking for her. At one point,
he stopped the truck extremely near where she crouched
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behind a fence, but he drove on. She escaped to the nearby
home at about 8:00 P.M. and reported the crimes.
State v. Jones, 340 S.E.2d 782, 782-83 (S.C. 1985) [hereinafter Jones
I].
Jones was convicted of murder, armed robbery, rape, housebreak-
ing, grand larceny of a motor vehicle, and kidnaping, and he was sen-
tenced to death. The South Carolina Supreme Court affirmed the
convictions and death sentence. See id. at 784. Subsequently, the
United States Supreme Court vacated the judgment and remanded for
reconsideration in light of Skipper v. South Carolina, 476 U.S. 1
(1986). See Jones v. South Carolina, 476 U.S. 1102 (1986). The
South Carolina Supreme Court then vacated Jones' sentence and
remanded for resentencing.
At resentencing, Jones presented testimony from Dr. Diane R. Fol-
lingstad, a clinical psychologist. Dr. Follingstad testified that Jones'
overall I.Q. was 67, in the mentally retarded range, and that his I.Q.
as it related to problem solving was only 63. Dr. Follingstad also testi-
fied that she found evidence of brain damage. Ultimately, Dr. Folling-
stad concluded that Jones was likely to act impulsively and was
unable to think abstractly about the morality or long-term conse-
quences of his actions. On cross-examination, Dr. Follingstad agreed
with counsel for the State that Jones was unlikely to change.
Defense counsel presented several other witnesses to testify regard-
ing Jones' childhood. Patricia Threatt, Jones' third-grade teacher, tes-
tified that Jones worked very hard in school but his efforts were
hampered by a poor memory and a severe speech impediment. Other
family members also mentioned that Jones had a speech problem.
Various family members testified that Jones began to withdraw from
the family and to act strangely after the death of his sister in 1979.
According to witnesses, Jones refused to attend the funeral and stated
that he wanted to die, too. Jones ransacked his mother's house on two
occasions, and he engaged in strange behaviors such as dressing inap-
propriately (e.g., shorts in the winter, a coat in the summer) and
repeatedly filling a bucket and rinsing his head. Jones' mother testi-
fied that he would sit on the edge of a bridge near the house "like he
was just in a deep wonder." J.A. 68. Jones' uncle testified that he tried
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to speak with Jones one day while Jones was sitting on the bridge, but
he was unresponsive.
Against the advice of his attorneys, Jones testified on his own
behalf. Jones denied that he was of low intelligence and denied or
explained some of the testimony of family members. For example,
Jones claimed that he used buckets of water to wash his hair because
the bathtub leaked. Jones stated that he shot Plyler because he could
not simply ask him for money, and asserted that he raped Mrs. Plyler
because "Mr. Plyler was dead." Id. at 124. When defense counsel
asked Jones why he shot Plyler with the pistol, Jones responded,
"Well, when I first blast him with the [shotgun], he was still living."
Id. at 89. Jones also admitted that he planned the robbery in advance.
On rebuttal, the State presented testimony from Dr. Donald W.
Morgan, who had previously examined Jones to determine whether he
was competent to stand trial. Dr. Morgan stated that Jones was not
retarded but rather was of "dull-normal" intelligence. Id. at 139. On
cross-examination, Dr. Morgan agreed that Jones might be psychotic.
The jury sentenced Jones to death, the South Carolina Supreme
Court affirmed the sentence on direct appeal, see State v. Jones, 378
S.E.2d 594, 598 (S.C. 1989) [hereinafter Jones II], and the United
States Supreme Court denied certiorari, see Jones v. South Carolina,
494 U.S. 1060 (1990). Jones thereafter sought post conviction relief
(PCR), which was denied by the circuit court. The South Carolina
Supreme Court granted certiorari as to whether trial counsel were
constitutionally ineffective for failing to develop additional mitigating
evidence. The court affirmed the denial of PCR, see Jones v. State,
504 S.E.2d 822, 828 (S.C. 1998) [hereinafter Jones III], and the
United States Supreme Court again denied certiorari, see Jones v.
South Carolina, 526 U.S. 1021 (1999).
Jones thereafter filed this habeas petition in federal district court.
As is pertinent to this appeal, Jones claimed that the trial court erred
in its instructions to the jury regarding mitigating circumstances and
that trial and appellate counsel were constitutionally ineffective. The
district court denied relief but granted a certificate of appealability.
Because Jones' habeas petition was filed after the April 24, 1996
enactment of the Antiterrorism and Effective Death Penalty Act
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(AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, the amend-
ments to 28 U.S.C.A. § 2254 effected by § 104 of the AEDPA govern
our resolution of this appeal. See Slack v. McDaniel, 529 U.S. 473,
481 (2000). Accordingly, we may not grant habeas relief unless, at a
minimum, the rejection of Jones' claims by the South Carolina courts
"was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States." 28 U.S.C.A. § 2254(d)(1). As the Supreme Court
recently explained in Williams v. Taylor, 529 U.S. 362, 413 (2000),
a state court decision is "contrary to" clearly established federal law
if the state court has "arrive[d] at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts." A state court decision consti-
tutes an unreasonable application of federal law if it "identifies the
correct governing legal principle from [the Supreme] Court's deci-
sions but unreasonably applies that principle to the facts of the prison-
er's case." Williams, 529 U.S. at 413.
II.
We first consider Jones' challenges to the jury instructions given
by the trial court. Jones contends that he was entitled to an instruction
regarding the statutory mitigating factor that "[t]he murder was com-
mitted while the defendant was under the influence of mental or emo-
tional disturbance," S.C. Code Ann. § 16-3-20(C)(b)(2) (Law. Co-op.
Supp. 2000), and that the denial of this instruction violated his right
to due process. Jones also maintains that the instructions of the trial
court regarding nonstatutory mitigating circumstances were constitu-
tionally deficient.
A.
At trial Jones requested an instruction regarding the statutory miti-
gating circumstance that the murder was committed while he was
under the influence of mental or emotional disturbance. Jones claimed
that the instruction was supported by Dr. Follingstad's testimony
regarding Jones' mental retardation and possible brain damage. The
trial court refused to give the requested instruction, and the South
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Carolina Supreme Court affirmed, reasoning that it was not supported
by any evidence presented at trial. See Jones II , 378 S.E.2d at 596-97.
The State contends that even if the South Carolina Supreme Court
incorrectly determined that no evidence supported the requested
instruction, this would be an error of state law that would not entitle
Jones to federal habeas relief. See Estelle v. McGuire, 502 U.S. 62,
67-68 (1991). We disagree. The State is correct, of course, that the
South Carolina Supreme Court is the ultimate arbiter of the meaning
of South Carolina law, see Wainwright v. Goode , 464 U.S. 78, 84
(1983) (per curiam); thus, we may not question a determination of the
meaning of the "mental and emotional disturbance" mitigator by the
South Carolina Supreme Court. Jones contends, however, that the rul-
ing of the South Carolina Supreme Court did not rest on such a state-
law determination, but rather that the court was simply incorrect in its
determination that the evidence presented at sentencing did not sup-
port the "mental or emotional disturbance" mitigator. If this is so,
Jones was entitled to the instruction as a matter of state law. See S.C.
Code Ann. § 16-3-20(C) (Law. Co-op. Supp. 2000) (providing that
the trial judge "shall include in his instructions to the jury" any statu-
tory mitigating circumstance supported by the evidence). Jones main-
tains that the denial of an instruction to which he was entitled as a
matter of state law would violate his right to due process under the
federal Constitution. Cf. Green v. Catoe, 220 F.3d 220, 224 (4th Cir.
2000) (noting that federal due process protections attach to some
state-created rights), petition for cert. filed , ___ U.S.L.W. ___ (U.S.
Nov. 24, 2000) (No. 00-7169).
The denial of the mitigating instruction was consistent with South
Carolina law and therefore could not have violated any due process
right possessed by Jones. The South Carolina Supreme Court has con-
sistently held that the "mental or emotional disturbance" mitigator is
not appropriate when the claimed disturbance is a chronic condition
rather than an acute one. For example, the court has held that evi-
dence that the defendant was a "borderline mental retardate" did not
require the trial court to give the instruction. State v. Tyner, 258
S.E.2d 559, 565 (S.C. 1979). Similarly, evidence that the defendant
was reared in an abusive environment did not justify an instruction on
the "mental or emotional disturbance" mitigator. See State v. Cain,
377 S.E.2d 556, 560 (S.C. 1988) (rejecting argument that history of
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"physical and psychological abuse" justified instruction on "mental or
emotional disturbance" because, "[w]hile ample evidence recon-
structed the often deplorable conditions under which appellant was
reared, no evidence existed to show that appellant acted under the
influence of a mental or emotional disturbance at the time he commit-
ted the murders" (emphasis added)).
In contrast, the South Carolina Supreme Court has consistently
held that an instruction on the "mental or emotional disturbance" miti-
gator is required when the defendant presents evidence of an acute
condition present at the time of the murder. See State v. Young, 409
S.E.2d 352, 355-56 (S.C. 1991) (holding that instruction was required
when evidence indicated that defendant "had been drinking heavily on
the night of the murder"); State v. Plemmons , 370 S.E.2d 871, 871-72
(S.C. 1988) (holding that evidence of intoxication requires instruction
on "mental or emotional disturbance" mitigator unless trial court oth-
erwise instructs that intoxication may be a mitigating factor); State v.
Pierce, 346 S.E.2d 707, 710-11 (S.C. 1986) (holding that instruction
on mitigating factor was required when evidence was presented that
defendant "was extremely intoxicated, smoking marijuana, and inject-
ing drugs intravenously during the commission of the crimes").
The evidence presented by Jones--that he is mentally retarded and
suffered many difficulties as a child and young man--is similar to the
evidence presented in Tyner and Cain, which the South Carolina
Supreme Court found inadequate to warrant instruction on the "men-
tal or emotional disturbance" mitigator. And, no evidence was pres-
ented that Jones was suffering from some acute mental condition such
as intoxication during the murders. Accordingly, the denial of the
instruction was consistent with South Carolina law and the ruling of
the South Carolina Supreme Court was neither contrary to, nor an
unreasonable application of, Supreme Court precedent.
B.
Next, Jones challenges the instructions of the trial court regarding
the manner in which the jury was to consider mitigating evidence.
The relevant portion of the jury charge was as follows:
Now, in arriving at your recommendation you may con-
sider any mitigating circumstances otherwise authorized or
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allowed by law, and you may consider certain so-called
statutory aggravating and mitigating circumstances which
are supported by the evidence.
. . . .
. . . [Y]ou can recommend that the Defendant be sen-
tenced to life imprisonment even if you unanimously find
beyond a reasonable doubt that one or more of the alleged
statutory aggravating circumstances existed at the time that
the murder in the case was committed.
Now, in addition to considering the statutory aggravating
circumstances, you may also consider each alleged statutory
mitigating circumstance[ ] supported by the evidence. . . .
Before you can recommend the imposition of the life sen-
tence it is not necessary, and I repeat, it is not necessary for
you to find beyond a reasonable doubt the existence of any
alleged statutory mitigating circumstances. While it is nec-
essary for you to find beyond a reasonable doubt the exis-
tence of at least one alleged statutory aggravating
circumstance before you can recommend that the Defendant
be sentenced to death, it is not required that you find beyond
a reasonable doubt the existence of at least one . .. alleged
statutory mitigating circumstance in order to recommend
that the Defendant be given life imprisonment.
As a matter of fact, you may recommend that the Defen-
dant receive a life sentence irrespective of whether you find
the existence in the evidence of an alleged statutory mitigat-
ing circumstance or not, but where you consider an alleged
statutory mitigating circumstance, it is proper for you to
consider only a statutory mitigating circumstance that is
supported by the evidence. As I say, however, you may rec-
ommend a life sentence without finding the existence of an
alleged statutory mitigating circumstance, and as I have told
you before, may recommend the imposition of a life sen-
tence even should you find beyond a reasonable doubt the
existence of an alleged statutory aggravating circumstance.
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. . . .
Now, what statutory mitigating circumstances may you
properly consider here? . . . That the Defendant has no sig-
nificant history of prior criminal conviction involving the
use of violence against another person. Another, the capac-
ity of the Defendant to appreciate the criminality of his con-
duct or to conform his conduct to the requirements of law
was substantially impaired. The age or mentality of the
Defendant at the time of the crime, and any other mitigating
circumstance or circumstances otherwise authorized by law.
J.A. 156-60 (emphasis added). Jones contends that these instructions
were flawed because they precluded the jury from considering evi-
dence that was mitigating but which did not support one of the statu-
tory mitigating factors. On direct appeal, the South Carolina Supreme
Court rejected Jones' challenge to the instructions on the basis that
the direction to consider "any other mitigating circumstance or cir-
cumstances . . . authorized by law" adequately informed the jury that
it could consider nonstatutory mitigating factors. See Jones II, 378
S.E.2d at 597; see also State v. Copeland, 300 S.E.2d 63, 71 (S.C.
1982) (holding that instruction to consider "any mitigating circum-
stances otherwise authorized or allowed by law" adequately alerted
the jury that it could consider nonstatutory mitigating factors (internal
quotation marks omitted)).
A jury shall "not be precluded from considering, as a mitigating
factor, any aspect of a defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a basis for
a sentence less than death." Lockett v. Ohio , 438 U.S. 586, 604 (1978)
(plurality opinion). In determining whether challenged instructions
violated this prohibition by placing relevant mitigating evidence
beyond the effective reach of the jury, a reviewing court must deter-
mine "whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way that prevents the consider-
ation of constitutionally relevant evidence." Boyde v. California, 494
U.S. 370, 380 (1990). Although the defendant need not establish that
it was more likely than not that the jury interpreted the instruction
erroneously, a mere possibility of an incorrect understanding is not
sufficient to establish an Eighth Amendment violation. See id. More-
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over, the court must not "engage in a technical parsing" of the instruc-
tion but rather must evaluate it "with a commonsense understanding
of the instruction[ ] in the light of all that has taken place at the trial."
Johnson v. Texas, 509 U.S. 350, 368 (1993) (internal quotation marks
omitted).
Having examined the ruling of the South Carolina Supreme Court
in light of these principles, we conclude that the rejection of Jones'
challenge to the mitigation instructions was neither contrary to, nor
an unreasonable application of, clearly established federal law.
Viewed as a whole and in the context of the mitigation case presented
by Jones, there is no reasonable likelihood that the jury understood
the instructions to preclude consideration of nonstatutory mitigating
factors. See Boyde, 494 U.S. at 383-84 (concluding that misunder-
standing of instructions was unlikely in view of four days of testi-
mony which would have been "a virtual charade" had the instructions
not permitted the jury to consider it (internal quotation marks omit-
ted)). In particular, the trial court instructed the jury that it could con-
sider "any other mitigating circumstance or circumstances" authorized
by law,2222 J.A. 160, and it specifically instructed the jury that a life sen-
tence could be returned even if the jurors did not find the existence
of any statutory mitigating factor. Under these circumstances, the jury
was not precluded from considering relevant mitigating evidence.
III.
We now turn to Jones' assertions that trial and appellate counsel
were constitutionally ineffective. To prevail on these claims, Jones
must demonstrate that his attorneys' "representation fell below an
objective standard of reasonableness" 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,
_________________________________________________________________
2222 Jones complains that the trial court erred in failing to provide further
instruction as to what was meant by "other mitigating . . . circumstances"
authorized by law. However, the Supreme Court has held that the Eighth
Amendment does not require a trial court to specifically instruct the jury
regarding the meaning of mitigating evidence or to give direction regard-
ing how mitigating evidence is to be considered. See Buchanan v. Ange-
lone, 522 U.S. 269, 275-76 (1998).
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466 U.S. 668, 688, 694 (1984). Review of counsel's performance is
"highly deferential." Id. at 689. And, competency is measured against
an objective standard of reasonableness in light of all the circum-
stances. See id. at 687-88. Attorneys are afforded a strong presump-
tion that their performance was within the broad range of
professionally competent assistance. See id. at 689. For the reasons
set forth below, we conclude that neither of Jones' claims of ineffec-
tive assistance of counsel has merit. Accordingly, the rejection of
these claims by the South Carolina courts neither was contrary to, nor
involved an unreasonable application of, clearly established federal
law.
A.
With respect to his assertion that resentencing counsel were consti-
tutionally ineffective, Jones first contends that counsel should have
presented additional expert testimony regarding his mental status. At
the PCR hearing, Jones presented testimony from four expert wit-
nesses. In sum, this testimony was that Jones was mentally retarded,
suffered from a speech impediment, likely had an organic brain dys-
function, had difficulty with abstract concepts, and was possibly psy-
chotic. See Jones III, 504 S.E.2d at 826. This is basically the same
evidence as was presented to the sentencing jury through Dr. Folling-
stad, Patricia Threatt, and Jones' family members. Even assuming that
counsel were ineffective for failing to uncover and present this evi-
dence, there is no likelihood that Jones was prejudiced by the failure
to present cumulative testimony. As the South Carolina Supreme
Court concluded in rejecting Jones' claim of ineffective assistance,
"all that would have occurred at the resentencing[had the additional
testimony been presented] was that the jury would have heard a more
elaborate version of Dr. Follingstad's testimony." Id. And, while one
witness could have produced additional testimony that Jones was psy-
chotic, such evidence would at best have been a"double-edged
sword" that would have hurt Jones as much as it helped him.3333 See
_________________________________________________________________
3333 Testimony that Jones might be psychotic came in on the State's rebut-
tal case, when it presented the testimony of Dr. Morgan. Ironically, Jones
complains that appellate counsel was constitutionally ineffective for fail-
ing to argue on direct appeal that the admission of this testimony violated
Jones' constitutional rights.
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Howard v. Moore, 131 F.3d 399, 421 (4th Cir. 1997) (en banc) (hold-
ing that petitioner was not prejudiced by failure to introduce evidence
in mitigation that would have hurt as much as it helped).
Jones also argues that counsel failed to present evidence that he
was raised in an environment of extreme poverty, abuse, and neglect.
Among other things, Jones contends that evidence should have been
presented that the family was so poor that they burned portions of the
house for warmth and sometimes ate dirt, and that Jones' relatives
encouraged him to sniff gasoline fumes as a child. In light of the hei-
nous nature of the crime and the overwhelming evidence against
Jones, there is no reasonable likelihood that presentation of this evi-
dence would have altered the outcome of the resentencing proceeding.
B.
Jones also challenges the performance of appellate counsel, main-
taining that his appellate attorney was ineffective for failing to argue
that the admission of Dr. Morgan's testimony violated Estelle v.
Smith, 451 U.S. 454, 470-71 (1981) (holding that use of statements
made during competency evaluation to establish future dangerousness
violated defendant's Sixth Amendment right to counsel). The PCR
court rejected this claim, reasoning that trial counsel's failure to
object to the admission of Dr. Morgan's testimony precluded appel-
late counsel from raising the issue. Alternatively, the PCR court held
that because the admission of Dr. Morgan's testimony did not violate
Jones' constitutional rights, appellate counsel was not ineffective for
failing to raise it. We agree with the latter conclusion.4444
Appellate counsel is not required to raise every colorable claim on
appeal; rather, "winnowing out weaker arguments on appeal and
focusing on those more likely to prevail . . . is the hallmark of effec-
tive appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986)
(internal quotation marks omitted); see Jones v. Barnes, 463 U.S. 745,
751-53 (1983). At a minimum, appellate counsel cannot be found
ineffective for failing to raise issues as to which there is no reasonable
likelihood of success.
_________________________________________________________________
4444 Accordingly, we do not address Jones' argument that the PCR court
incorrectly concluded that the Estelle claim was defaulted.
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Appellate counsel was not ineffective for failing to raise the Estelle
claim because, even if Jones is correct that Dr. Morgan's testimony
was improperly admitted, the error was harmless beyond a reasonable
doubt, see Satterwhite v. Texas, 486 U.S. 249, 257-58 (1988) (holding
that Estelle violations are subject to harmless error analysis); there-
fore, this claim was not reasonably likely to succeed. Dr. Morgan's
testimony consisted of two points: that Jones was of"dull-normal"
intelligence and that Jones might be psychotic. Dr. Morgan's opinion
of Jones' intelligence level was hardly a devastating blow to the
defense. Rather, it constituted nothing more than a relatively minor
disagreement with Dr. Follingstad's opinion. The testimony that Jones
might be psychotic was elicited by defense counsel on cross-
examination, and Jones himself contends that this evidence was miti-
gating, not aggravating.
IV.
For the reasons set forth above, we affirm the denial of habeas
relief.
AFFIRMED
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