Conner v. Epps, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-60701
Summary Calendar
_______________
RONNIE CONNER,
Petitioner-Appellant,
VERSUS
CHRISTOPHER B. EPPS,
ACTING COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS;
MICHAEL MOORE,
ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI,
Respondents-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
m 4:97-CV-17WS
_________________________
November 18, 2002

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2
Before SMITH, EMILIO M. GARZA, and
CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
This case presents the sole question wheth-
er Ronnie Conner received ineffective assis-
tance of counsel during the sentencing phase
of his trial for capital murder. Because any
deficiency in counsel’s performance did not
prejudice Conner under Strickland v. Wash-
ington, 466 U.S. 668 (1985), we affirm.
I.
The Mississippi Supreme Court stated the
facts of this case in detail on Conner’s direct
appeal. Conner v. State, 632 So. 2d 1239,
1243-47 (Miss. 1993). We review these facts
briefly here.
At the time of the murder, Conner, a man
of modest intelligence and less worldly suc-
cess, was thirty-one years old. He had an IQ
in the mid- to low seventies and had never held
a steady job. He drank often and used mar-
ihuana and crack cocaine. He was diagnosed
in the 1980’s with schizophrenia and unspeci-
fied personality disorders.
On January 1, 1990, Conner declared that
“I am out to get my revenge because I am tired
of sitting around and waiting on people to give
me mine, so I am going to start getting mine.”
He apparently decided to “get his” by kidnap-
ing and brutally murdering Celeste Brown, an
elderly woman. When Brown arrived by car at
a train station, Conner abducted her at knife
point, making her drive her car to a secluded
country road a few miles from the station,
where he slit her throat. The wound was not
deep enough to cause instant death, so Brown
bled for up to ten minutes until she finally died.
The wound cut her jugular vein and punctured
her oral cavity, leaving her unable to call for
help after Conner had left her for dead. As a
result of these crimes, Conner took approxi-
mately $200 and a ring from Brown, which he
later sold for $15. He then used this money in
part to buy beer and crack.
A jury convicted Conner of capital murder
based on overwhelming testimony and evi-
dence. A friend of Conner’s witnessed him ab-
duct Brown shortly after Conner said he need-
ed to rob someone to get some cash; forensic
evidence connected him to the murder. Con-
ner also displayed Brown’s ring to several
acquaintances to obtain their estimates of the
its value. Finally, he confessed, in the pres-
ence of three other people, to murdering
Brown. He relied on an alibi defense based on
testimony that, on cross-examination, proved
to be either not credible or not inconsistent
with the state’s evidence.
At the sentencing phase of the trial, the
state re-introduced all evidence from the guilt
phase and a record of Conner’s conviction of
robbery. The state presented no additional
witnesses. Conner’s trial counsel also relied
on the guilt-phase evidence, which included
Conner’s medical records, and presented two
additional witnesses.
First, Conner’s sister Dorothy testified that
Conner had been treated for mental illness at
the Weems Mental Health Center for roughly
a decade and that he was on medication,
though she thought he did not always take his
medicine. She also testified to Conner’s gen-
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.

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3
eral history of social maladjustment. On cross-
examination, she acknowledged that Conner
was responsible for his actions and that he
knew right from wrong on the day of the
murder.
Second, Conner testified to his history of
schizophrenia and its effects on him. He ac-
knowledged that he took his medication every
day, including the day of the murder. And
though Conner admitted that he sometimes
drank while taking the medication, against his
doctor’s orders, he denied either drinking or
smoking crack on the day in question. Perhaps
recognizing how damaging these admissions
were to his mitigating-circumstances argu-
ment, Conner quickly backpedaled and claimed
he could not remember whether he took his
medication, drank, or smoked crack that day.
To sentence to death, under Mississippi
law, the jury must find specific aggravating cir-
cumstances unanimously and beyond a rea-
sonable doubt. MISS. CODE ANN. § 99-19-
103. The jury identified five aggravating cir-
cumstances: Conner committed the murder
(1) while engaged in a kidnaping, (2) while
engaged in a robbery, (3) for pecuniary gain,
and (4) in an especially heinous, atrocious, or
cruel manner, and (5) he had a felony convic-
tion involving the use or threat of violence.
MISS. CODE ANN. § 99-19-101(5).1 The jury
further found insufficient mitigating circum-
stances to outweigh these aggravating circum-
stances. The jury did not state whether it
found any mitigating circumstances or, if it
did, which ones, because Mississippi law does
not require the jury to agree on particular mit-
igating circumstances or to find them beyond
a reasonable doubt.2 Bell v. State, 725 So. 2d
836, 859 (Miss. 1998); Conner, 632 So. 2d at
1277.
After the Mississippi Supreme Court af-
firmed Conner’s capital conviction and sen-
1 On direct appeal and state collateral review,
Conner argued that the jury impermissibly double-
counted the underlying offense of robbery and the
motive, i.e., pecuniary gain, for the underlying of-
fense. On both occasions, the Mississippi Supreme
Court acknowledged that it had disapproved of this
practice, after Conner’s trial, in Willie v. State,
585 So. 2d 660 (Miss. 1991), but held that Willie
was not retroactive. Conner, 632 So. 2d at 1269
(direct appeal); Conner v. State, 684 So. 2d 608,
(continued...)
1(...continued)
614 (Miss. 1996) (state collateral review). Conner
makes this same argument in his petition for a writ
of habeas corpus. See infra part III.
Also on direct appeal, Conner argued that the
jury instruction on the aggravating circumstance of
committing the crime in an “especially heinous,
atrocious, or cruel manner” was impermissibly
vague under the Eighth Amendment. The Missis-
sippi Supreme Court acknowledged that one sen-
tence of this instruction was impermissibly vague,
but held that the other two sentences satisfied
Clemons v. Mississippi, 494 U.S. 738 (1990), and
Shell v. Mississippi, 498 U.S. 1 (1990). Conner,
632 So. 2d at 1269-71. Conner also makes this
argument in his habeas petition. See infra part III.
2 The instruction allowed the jury to consider
four statutory mitigating circumstances: (1) the
possibility that Conner committed the murder under
the influence of extreme mental or emotional
disturbance, (2) the possibility that Conner’s ca-
pacity to appreciate the criminality of his conduct
or to conform his conduct to the requirements of
law was substantially impaired, (3) Conners’s age
at the time of the murder, and (4) whether he had
no significant history of prior criminal activity.
MISS. CODE ANN. § 99-19-103(6). The instruction
also allowed the jury to consider any additional
non-statutory mitigating circumstance.

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4
tence on direct appeal, Conner filed a “Motion
to Vacate Conviction and/or Death Sentence”
under the Mississippi Uniform Post-Conviction
Collateral Relief Act. MISS. CODE ANN. § 99-
39-1 et seq. This motion stated, as a ground
for relief, the same question presented by
Conner’s federal habeas corpus petition,
namely, whether Conner received ineffective
assistance of counsel during the sentencing
phase of his trial because his counsel had
failed to investigate and present allegedly mit-
igating evidence related to Conner’s schizo-
phrenia. The Mississippi Supreme Court iden-
tified Washington as the controlling law and
held that Conner had suffered no prejudice
from his counsel’s failure to offer the evidence.
Conner v. State, 684 So. 2d 608, 610-12
(Miss. 1996). The court denied the petition.
Conner next filed a federal habeas petition
that identified eight separate grounds for relief.
In an unpublished opinion, the court rejected
all grounds and denied the petition, then
rejected two motions to reconsider. The court
nevertheless granted a certificate of appeal-
ability (“COA”), 28 U.S.C. § 2253, limited to
the question of ineffective assistance of
counsel at the sentencing phase.
II.
A.
Conner’s argument is straightforward: He
contends that his trial counsel was ineffective
by failing to investigate and therefore to
present allegedly mitigating evidence related to
Conner’s history of schizophrenia. “It is clear
that defense counsel’s failure to investigate the
basis of his client’s mitigation defense can
amount to ineffective assistance of counsel.”
Lockett v. Anderson, 230 F.3d 695, 711 (5th
Cir. 2000). Conner argues that if his counsel
had prepared properly for the sentencing
phase, the attorney would have called several
doctors and social workers who could have
testified about Conner’s history of
schizophrenia and his supposed tendency not
to take his medication. Furthermore, Conner
urges that the failure to present this testimony
prejudiced him, because there is a reasonable
probability that the jury would have found him
under the influence of extreme mental
disturbance or unable to appreciate the
criminality of his conduct or to conform his
conduct to law.
Thus, according to Conner, there is a
reasonable probability that the jury would have
sentenced him to life imprisonment instead of
death had it known of this evidence. Finally,
Conner argues that the Mississippi Supreme
Court’s decision to the contrary is both an un-
reasonable application of Washington and the
result of an unreasonable determination of the
facts in light of the evidence before that court.
28 U.S.C. § 2254(d)(1)-(2).
In Neal v. Puckett, 286 F.3d 230 (5th Cir.
2002) (en banc), we reviewed a similar
ineffective assistance claim of failure to
investigate and present allegedly mitigating
evidence. The thorough reasoning of Neal
guides our analysis here. “In a habeas corpus
appeal, we review the district court’s findings
of facts for clear error and review its
conclusions of law de novo, applying the same
standard of review to the state court’s decision
as the district court.” Foster v. Johnson, 293
F.3d 766, 776 (5th Cir. 2002) (citation
omitted).
B.
The Antiterrorism and Effective Death Pen-
alty Act of 1996 (“AEDPA”) governs this
appeal, because Conner filed his petition after
April 24, 1996, the effective date of AEDPA.
Lindh v. Murphy, 521 U.S. 320, 324-26

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5
(1997). In particular, the provisions of 28
U.S.C. § 2254(d) apply to Conner’s arguments
that the Mississippi Supreme Court
unreaso nably applied federal law and
unreasonably determined the facts.
Section 2254(d) governs any petition for
writ of habeas corpus “with respect to any
claim that was adjudicated on the merits in
State Court proceedings.” A case is decided
“on the merits” where the state court’s
disposition is substantive, not procedural.
Neal, 286 F.3d at 235 (citing Green v.
Johnson, 116 F.3d 1115, 1121 (5th Cir.
1997)). The Mississippi Supreme Court
expressly held that “Conner fail[ed] to show
that but for the presentation of evidence of his
alleged mental illness, the outcome of his trial
might have been different.” Conner, 684 So.
2d at 612. This holding certainly qualifies as a
decision “on the merits.”
Section 2254(d)(1) states that a federal
court shall not grant a writ of habeas corpus
unless the state court’s adjudication “resulted
in a decision that was contrary to, or involved
an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States.”3 The
two phrases in § 2254(d)(1)SS“contrary to”
and “unreasonable application”SShave
independent meanings, and the “unreasonable
application” standard applies when “the state
court identifies the correct governing legal
principle from th[e Supreme] Court’s decisions
but unreasonably applies that principle to the
facts of the prisoner’s case.” Williams v.
Taylor, 529 U.S. 362, 413 (2000). The
unreasonable application standard applies in
this case because, as the parties rightly agree,
Washington imposes the correct governing
legal principle.
We observed in Neal, 286 F.3d at 236, that
“‘unreasonable’ is difficult to define,” but for-
tunately the Court offered some guidance in
Williams. First, the Court rejected a
subjective standard of reasonableness like the
one we adopted in Drinkard v. Johnson, 97
F.3d 751, 769 (5th Cir. 1996), and announced
instead an objective standard. “Stated simply,
a federal habeas court making the
‘unreasonable application’ inquiry should ask
whether the state court’s application of clearly
established federal law was objectively
unreasonable.” Williams, 529 U.S. at 409.
Second, and more importantly, the Court
distinguished between a merely incorrect or
erroneous application of federal law and an
unreasonable application. “[A] federal habeas
court may not issue the writ simply because
that court concludes in its independent
judgment that the relevant state-court decision
applied clearly established federal law
erroneously or incorrectly. Rather, that
application must also be unreasonable.” Id. at
411.4
3 Washington is “clearly established Federal
law.” Williams, 529 U.S. at 390-91.
4 In Woodford v. Visciotti, 537 U.S. ___, 2002
U.S. LEXIS 8312 (U.S. Nov. 4, 2002) (per curi-
am), the Court addressed a similar claim of inef-
fective assistance of counsel during the sentencing
phase of a capital murder trial. The Ninth Circuit
had granted the petitioner a writ of habeas corpus,
holding that the state court had not considered the
totality of the mitigating evidence or the prejudicial
effect of counsel’s actions and the weakness of the
aggravating factors. Id. at *3-*4. The Supreme
Court reversed, because “[t]he Ninth Circuit did
not observe this distinction [between an incorrect
and an unreasonable application], but ultimately
substituted its own judgment for that of the state
(continued...)

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6
In Neal, we further addressed the scope of
the “unreasonable application” standard. First,
we, unlike several other circuits, specifically
declined “to supplement the Williams Court’s
‘objectively unreasonable’ standard. Neal, 286
F.3d at 246 n.11. Second, we held that a
federal habeas court should review only the
state court’s legal conclusion, not its reasoning
or method of reaching that conclusion. The
“focus . . . should be on the ultimate legal
conclusion that the state court reached and not
on whether the state court considered and dis-
cussed every angle of the evidence.” Id. at
246.
Section 2254(d)(2) states that a federal
court shall not grant a writ of habeas corpus
unless the state court’s adjudication “resulted
in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.” The Supreme Court has not
interpreted t his new provision; we, however,
have addressed § 2254(d)(2). “To establish
that habeas relief is warranted on the §
2254(d)(2) ground . . . a petitioner must rebut
by clear and convincing evidence the §
2254(e)(1) presumption that a state court’s
factual findings are correct.” Foster, 293 F.3d
at 776-77 (citing Dowthitt v. Johnson, 230
F.3d 733, 744 (5th Cir. 2000), cert. denied,
532 U.S. 915 (2001)).
With the deferential standards of § 2254(d)
in mind, we face a precise question. We em-
phatically do not review the Mississippi trial
record to determine de novo whether Conner
received ineffective assistance of counsel dur-
ing the sentencing phase of his trial. Rather
“the question before us is whether the
Mississippi Supreme Court’s decision to reject
[Conner’s] ineffective assistance claim
‘involved an unreasonable application’ (and
not merely an incorrect application) of
[Washington].” Neal, 286 F.3d at 236.
C.
To establish ineffective assistance of
counsel, Conner must show that (1) his trial
counsel’s performance was deficient and (2)
this deficient performance prejudiced his
defense. Washington, 466 U.S. at 687. The
Mississippi Supreme Court assumed that the
trial counsel’s performance was deficient but
held that the deficiency did not prejudice
Conner. Conner, 684 So. 2d at 612. This
determination is neither an unreasonable
application of Washington nor the result of an
unreasonable determination of the facts
presented in the state court proceeding.
1.
A lawyer’s performance is deficient if it
“falls below an objective standard of
reasonableness” as measured by professional
norms. Washington, 466 U.S. at 688. In
applying this standard for deficiency, “[w]e
must determine whether there is a gap between
what counsel actually did and what a
reasonable attorney would have done under
the circumstances.” Neal, 286 F.3d at 236.
We must be wary of “the distorting effects of
hindsight,” Washington, 466 U.S. at 689, and
we do not assume that counsel’s performance
was deficient “merely because we disagree
with trial counsel’s strategy,” Crane v.
Johnson, 178 F.3d 309, 312 (5th Cir. 1999).
4(...continued)
court, in contravention of 28 U.S.C. § 2254(d).”
Id. at *9. The Court concluded that “[w]hether or
not we would reach the same conclusion as the
California Supreme Court, we think at the very
least that the state court’s contrary assessment was
not ‘unreasonable.’” Id. at *13 (citation omitted).

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7
At the same time, a criminal defendant fac-
ing the death penalty is entitled to a
“reasonably substantial, independent
investigation” into potential mitigating
circumstances. Baldwin, 704 F.2d 1325,
1332-33 (5th Cir. 1983). We consider several
factors when evaluating the adequacy of trial
counsel’s investigation: (1) what trial counsel
actually did to prepare for sentencing, (2) what
mitigating evidence he obtained, (3) what
additional “leads” he had, and (4) what results
he might have expected from these leads.
Neal, 286 F.3d at 237. Conner’s trial counsel
did not satisfy this standard.5
Trial counsel admitted that his performance
was deficient. In an affidavit supporting Con-
ner’s state petition for collateral relief and fed-
eral habeas petition, counsel states that he was
(and still is) convinced of Conner’s innocence.
Though he “recognized that should Mr. Con-
ner be found guilty, his best argument at sen-
tencing was that he suffer[ed] from mental ill-
ness,” counsel did not prepare for the
sentencing phase before trial. He did not
consult with any of Conner’s treating
physicians at Weems Mental Health Center or
any expert witness on schizophrenia.
After the jury returned a verdict of guilty,
counsel frantically tried to locate a treating
physician or an expert witness. Yet, with the
sentencing phase beginning the next day, he
could locate neither. Thus, he relied on Con-
ner’s medical records and the testimony of
Conner’s sister Dorothy, much of which was
excluded as hearsay.
We by no means suggest that a trial
counsel’s sworn acknowledgment of his
deficient performance satisfies Washington’s
deficiency standard. Such a rule, it should go
without saying, would invite every defendant
to attack his conviction based on an easily
attainable affidavit from a now-removed and
probably conscience-stricken attorney. In this
case, however, the state trial record supports
the attorney’s affidavit.
Conner contends that his lawyer should
have presented additional evidence of Con-
ner’s schizophrenia and his failure to take
medication. The attorney did present these
facts to the jury, albeit in skeletal form. Con-
ner’s medical records documented his history
of schizophrenia and his prescriptions for med-
ication to control the disease. His sister
testified that he was treated at Weems Medical
Health Center and that he was on medication.
She told the jury that she thought Conner did
not always take his medication. Conner
testified about his mental illness and its effects.
Thus, the jury was aware of his main
argument for mitigation, though “it was
presented to the jury in an abbreviated form
with no elaboration.” Neal, 286 F.3d at 238.
Based on several affidavits, Conner argues
that counsel could have offered much stronger
evidence.6 This evidence is threefold. First is
an affidavit from W.M. Wood, the psychiatrist
who treated Conner at Weems in 1988 and
1989. Wood attests that, if the attorney had
so requested, he could have testified regarding
Conner’s history of schizophrenia and alcohol
abuse; Conner’s history of psychotic episodes,
including hearing voices; Conner’s leap from a
5 Although the Mississippi Supreme Court as-
sumed trial counsel’s performance was deficient,
the state does not concede the point. We therefore
address the state’s arguments.
6 Conner presented these affidavits to the
Mississippi Supreme Court and the federal district
court.

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8
moving train at these voices’ instructions;
Conner’s medical prescriptions and the
doctor’s belief that Conner did not always take
the medication; the doctor’s belief that Conner
was using alcohol and drugs in the latter part
of 1989; and his opinion that Conner’s “acting
out without regard to laws and morays [sic] is
a product of his mental illness rather than be-
havior under which he has control.”
Second is a series of affidavits and
prescriptions allegedly suggesting that Conner
was not taking his medication on the day of
the murder. As noted, Wood would have
testified that he “believed” Conner was off his
medication. Similarly, Marie Sipp, a social
worker who handled Conner’s case at Weems,
attests that she would have testified that she
“believe[d] . . . he had gotten off his
medication.”
Marshall Powe, a social worker who
assisted Conner at Weems from 1987 to 1989,
contends that he would have testified
regarding the Conner family history of mental
illness, Conner’s inability to manage his financ-
es, and his frequent confusion. Ida Conner,
Conner’s mother, attests that she found
prescriptions for medication in Conner’s
apartment shortly after his arrest. Perry Wal-
lace, a doctor who treated Conner at a local
hospital, stated that he wrote these
prescriptions for Conner in December 1989.
Conner offers these last two affidavits
presumably as the foundation to introduce the
prescriptions and argue that they prove he was
not taking his medication on the day of the
murder.
Third, Conner offers the affidavit of Mark
Webb, a psychiatrist. Though Webb never
treated, examined, or even met Conner, he
opines based on the preceding affidavits, Con-
ner’s medical records, and the state court rec-
ord that Conner “very likely” was not taking
his medication on the day in question.
More importantly, Webb expresses his
“opinion to a reasonable degree of medical
certainty” that Conner murdered Brown under
the influence of extreme mental and emotional
disturbance and that Conner’s capacity to ap-
preciate the criminality of his conduct or to
conform his conduct to the requirements of
law was substantially impaired. This language
mimics the two statutory mitigating
circumstances on which Conner relies. MISS.
CODE ANN. § 99-19-101(6)(b), (f). Conner
also suggests that Webb could have served as
a general medical expert on the origins and
symptoms of schizophrenia.
As we explain, infra part III.C.2, we are
unimpressed by this evidence. Unlike the evi-
dence discussed in Neal, 286 F.3d at 237-39,
this evidence is neither extensive nor weighty.
The state argues, for this reason, that
counsel’s failure to present the evidence could
not amount to deficient performance. We dis-
agree.
The factors identified in Neal do not sup-
port the state’s argument. Counsel did
nothing whatsoever to prepare for the
sentencing phase before trial began or during
the guilt phase. Yet, he was well aware of
Conner’s medical history, and he rightly
believed that Conner lacked any other
persuasive mitigating evidence. The attorney
did not follow this obvious “lead,” even
though any reasonable person, much less any
reasonable attorney, would have known to
consult with Conner’s treating physician and a
medical expert.
Moreover, this evidence was readily

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9
available. These potential witnesses lived in
the same county as Conner and trial counsel,
i.e., the county where the state tried Conner.
Several of these potential witnesses attest that
trial counsel did not contact them before or
during Conner’s trial, a fact we found “most
troubling” in Neal, 286 F.3d at 240. Finally,
the state does not argue, nor does the record
indicate, that counsel strategically withheld
this evidence to avoid the introduction of
unflattering evidence along with the mitigating
evidence.
Conner’s lawyer had an obligation at least
to investigate and perhaps to present this po-
tentially mitigating evidence, because it “could
reasonably have been expected to augment
[Conner’s] case.” Id. His failure to do so
“falls below an objective standard of
reasonableness” as measured by professional
norms. Washington, 466 U.S. at 688. Thus,
we agree with the Mississippi Supreme
Court’s implicit assumption: Counsel’s
performance was deficient.
2.
Deficiency is not enough; Conner must
show prejudice, which is at least “a reasonable
probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different.”
Washington, 466 U.S. at 694. A “reasonable
probability” means a probability sufficient to
undermine confidence in the outcome. Id. at
668. “In determining prejudice, we are thus
required to compare the evidence actually
presented at sentencing with all the mitigating
evidence contained in the postconviction
record.” Neal, 286 F.3d at 241. The
additional mitigating evidence must be so
compelling that there is a reasonable
probability that at least one juror7 reasonably
could have determined that Conner did not
deserve the death penalty because of his
reduced moral culpability. Id.
We do not, however, write on a blank slate,
because the Mississippi Supreme Court already
has adjudicated this claim on the merits.
Conner, 684 So. 2d at 610-12. We therefore
must affirm the denial of the habeas petition
unless the Mississippi Supreme Court
unreasonably applied Washington or
unreasonably determined the facts based on
the record. 28 U.S.C. § 2254(d)(1)-(2). So
far from being unreasonable, we conclude that
the Mississippi Supreme Court’s adjudication
was imminently reasonable on the law and the
facts.
That court observed that at several
junctures of the trial, the state trial court
carefully considered Conner’s mental health.
Conner, 684 So. 2d at 611. The court also
noted that psychiatrists at the Whitfield State
Hospital had evaluated Conner in March 1990
and concluded that
[t]he staff was unanimous in the opinion
that he is competent to stand trial at the
present time. He appears to have a ra-
tional as well as factual understanding of
the charges against him and he appears
capable of assisting his attorney in
preparing a defense. With regard to his
sanity at the time of the crime, the staff
was unanimous in the opinion that he
knew the difference between right and
wrong in relation to his actions.
7 Under Mississippi law, the jury must vote
unanimously to impose the death penalty. MISS.
CODE ANN. § 99-19-103.

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10
Mr. Conner has been treated at the
[Weems] Mental Health Center for a
number of years and has a Schizophrenic
diagnosis. We have retained this diag-
nosis, although he has shown few if any
of the symptoms of this disorder during
his stay in the hospital. He is on
medication and this could account for
the lack of symptoms. We have given
him a diagnosis of Personality Disorder
Not Otherwise Specified to reflect a
long-standing pattern of social
discomfort, excessive dependency, and
a tendency to take out his anger in
indirect and passive ways.
Id. at 611 (citation omitted).8 Next, the court
carefully distinguished two Washington
precedents. Id. at 611-12 (distinguishing
Woodward v. State, 635 So. 2d 805 (Miss.
1993), and Loyd v. Smith, 899 F.2d 1416 (5th
Cir. 1990)). The court then stated that
“[b]ased on the evaluation from Whitfield, it
hardly seems that further evidence of Conner’s
alleged personality disorders was necessary.”
Id. at 612.
Finally, the Mississippi Supreme Court
reached the heart of its analysis, namely, that
the additional mitigating evidence is not es-
pecially probative of the mitigating
circumstances on which Conner relied.
Conner asserted that the evidence showed that
he murdered under the influence of extreme
mental disturbance and that his capacity to
appreciate the criminality of his conduct or to
conform his conduct to the requirements of
law was substantially impaired. In particular,
he claimed he suffered from schizophrenic
delusions on the day of the murder because he
was not taking his medication.
The additional evidence, however,
established merely that Conner once was
diagnosed with schizophrenia, may (or may
not) have failed to take his medication
regularly, and had a history of substance
abuse. Id. The court acknowledged that “it
might be tempting to argue that Conner was
prejudiced by his attorney’s lack of foresight,”
but the court faithfully applied the Washington
standard and held that “Conner fails to show
that but for the presentation of evidence of his
alleged mental illness, the outcome of his trial
might have been different.” Id.
We agree with the Mississippi Supreme
Court that there is no reasonable probability
that even a single juror would have refused to
impose the death penalty if presented with the
additional mitigating evidence. Conner does
not argue that the jury would have found a
general mitigating circumstance such as a
troubled childhood, a hard life, or unadorned
mercy. Conner argues that the evidence would
have convinced the jury that on the day of the
murder, he was under the influence of extreme
mental disturbance and lacked the capacity to
understand the criminality of his conduct or to
conform his conduct to law, because he
suffered from schizophrenic delusions as a
result of not taking his medication. The
additional mitigating evidence does little to
establish this proposition.
None of the proffered witnesses
encountered Conner on the day of the murder,
so they have no firsthand, personal knowledge
of whether he was taking his medication.
Wood would have testified only that he
“believed” Conner did not take his medication
in “intervals” and that Conner generally
“act[ed] out without regard to laws” because 8 The full text of the Whitfield letter appears at
Conner, 632 So. 2d at 1251.

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of Conner’s “mental illness.” This testimony,
however, would not have established
specifically that Conner’s misdeeds were the
result of schizophrenic delusions. Similarly,
the affidavits of Sipp and Powe state nothing
more than their belief, based to some extent on
sheer speculation, that Conner was not taking
his medication.
The prescriptions offered as evidence,
based on the affidavits of Ida Conner and
Wallace, also do not prove that Conner was
not taking his medications. Conner has
presented no evidence that these prescriptions
were unfilled or, even if they were unfilled,
that he did not have medication remaining
from earlier prescriptions. Finally, Webb
might have explained, in more precise detail,
the nature of schizophrenia to the jury, but this
testimony certainly could not establish that
Conner was not taking his medicine on the day
of the murder.
Vastly more probative than any of this evi-
dence is Conner’s testimony during the
sentencing phase. He admittedSSon direct
examination, no lessSSthat he took his
medication every day. On cross-examination,
he further acknowledged that he specifically
recalled taking it on the murder date, and
denied drinking alcohol or smoking crack that
day.
Granted, Conner instantly retreated and
claimed he could not recall whether he took
his medication, drank, or smoked crack. Per-
haps these admissions reveal a man still
suffering schizophrenic delusions (though we
note that he was taking his medication during
the trial). Perhaps Conner recognized that he
had terribly undermined his only plausible miti-
gating circumstance. We cannot say, because
we did not observe his testimony, which is
why this kind of credibility determination
belongs particularly with the jury. We will not
revisit such a jury finding on direct appeal
from a federal district court, and we certainly
will not do so on a habeas petition from state
court.
Even if the jury had credited this additional
evidence, the Mississippi Supreme Court is
correct that, as we said in Neal, 286 F.3d at
247, “the additional evidence was not
substantial enough to outweigh the
overwhelming aggravating circumstances.”
Conner manifested a shocking indifference to
human life with his gruesome murder of a
helpless old woman for barely more than $200.
The jury expressed its reasoned and justifiable
moral outrage by finding four aggravating
circumstances for imposing the death penalty.9
The jury had the basic facts of Conner’s
mitigating circumstances argument before it,
i.e., Conner was diagnosed with schizophrenia
and may not have taken his medication
regularly, but it nonetheless voted unanimously
that the aggravating circumstances outweighed
the mitigating circumstances (if any). Mere
hearsay and conjecture from a handful of doc-
tors and social workers is unlikely, in the ex-
treme, to have shifted the balance.
This case is a far cry from other cases in
which we have held that a capital defendant
was prejudiced by counsel’s failure to present
additional mitigating evidence. In Neal, for
example, the attorney presented the “basic evi-
dence” of the defendant’s miserable childhood,
9 The jury actually found five aggravating cir-
cumstances, but the Mississippi Supreme Court
has explained that two of them should count as
only one. See supra note 1.

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moderate retardation, history of institu-
tionalization, and serious behavioral problems.
Id. at 243. Yet, we held that the state court
had erred in concluding that the failure to
present the additional evidence did not pre-
judice the defendant, because the additional
evidence provided much more detail and con-
text, buttressed other evidence, and humanized
the defendant, id. at 244, though we further
held that the state court had not acted un-
reasonably under § 2254(d)(1) and Williams,
id. at 246-47. By contrast, the additional miti-
gating evidence in this case provides no extra
details, but simply attempts to buttress other
evidence with unsubstantiated speculation.
In Lockett, for another example, trial
counsel offered essentially no mitigating
evidence during the sentencing phase but
instead simply begged the jury for mercy.
Lockett, 230 F.3d at 711, 716. Yet, counsel
knew of evidence that the defendant suffered
from a personality disorder, a brain
abnormality, and seizures caused by temporal
lobe epilepsy, which could have caused the
violent murder. Id. at 713. We had little
trouble concluding that the failure to present
this evidence prejudiced the defendant,
because an objectively reasonable jury, if
presented with this evidence, very well might
have concluded that the defendant had reduced
moral culpability and therefore did not warrant
the death penalty. Id. at 716-17. Unlike the
evidence in Lockett, however, the additional
mitigating evidence in this case does not
introduce an entirely new aggravating
circumstance and does not supplement an
otherwise barren record.
On the record and with the arguments be-
fore us, we cannot say that the Mississippi Su-
preme Court incorrectly applied Washington,
much less unreasonably applied it, or based its
decision on an incorrect, much less an
unreasonable, determination of the facts on the
record before it. There is no reasonable
probability sufficient to undermine confidence
in the sentence of death.
III.
Conner seeks habeas relief on four
additional grounds: (1) The jury double-
counted, as aggravating factors, the underlying
felony of robbery and the motive, i.e.,
pecuniary gain, for this underlying felony; (2)
the Mississippi Supreme Court refused to
grant Conner expert assistance; (3) the district
court, after denying the petition on the merits,
refused to let Conner amend his petition to
include grounds for relief based on Penry v.
Johnson, 532 U.S. 782 (2001), and Apprendi
v. New Jersey, 530 U.S. 466 (2000); and (4)
the jury instruction for the aggravating
circumstance of an “especially heinous,
atrocious, or cruel ” offense was
unconstitutionally vague. We do not address
the merits of these grounds, because they are
not properly before this court.
In an effort to reduce frivolous appeals and
protracted death penalty litigation, AEDPA
requires a habeas litigant to obtain a COA to
appeal the denial of his petition. 28 U.S.C.
§ 2253. Section 2253(c)(3) plainly states that
a COA “shall indicate which specific issue or
issues satisfy the showing” necessary to obtain
a COA. Conner did not request a COA from
the district court, but instead filed a notice of
appeal in which he identified the ineffective
assistance claim and these other four grounds
for relief. The court treated this notice of ap-
peal as a constructive request for a COA on all
grounds. Yet, the court granted a COA only
on the ineffective assistance ground.
We cannot review questions beyond the

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scope of the COA. 28 U.S.C. § 2253(c)(3);
Lackey v. Johnson, 116 F.3d 149, 151 (5th
Cir. 1997). Furthermore, “a notice of appeal
is not a constructive request [to this court] for
review of issues refused certification by the
district court where the district court certified
some but not all issues.” United States v.
Kimler, 150 F.3d 429, 430 (5th Cir. 1998).
Conner did not specifically request that this
court grant a COA on the additional four
grounds.10 Thus, we decline to consider
whether he has made the necessary showing
for a COA on these grounds, 28 U.S.C.
§ 2253(c)(2), or whether relief is warranted on
the merits.11
The judgment of the district court, denying
the petition for writ of habeas corpus, is
AFFIRMED.
10 Briefly and without argument, Conner re-
quests a COA in his reply brief only after the state
correctly argued, in its response brief, that these
grounds are not properly before this court. We de-
cline to recognize the request, however, because
Conner should have made it in his opening brief.
“It is well-settled that, generally, we will not con-
sider issues raised for the first time in a reply
brief.” United States v. Jackson, 50 F.3d 1335,
1340 n.7 (5th Cir. 1995).
11 Our refusal to reach these grounds operates
as a dismissal with prejudice; we will not consider
a second or successive habeas petition based on
these grounds. 28 U.S.C. § 2244(b)(1).

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