Green v. Cockrell

United States Court of Appeals
Fifth Circuit
F I L E D
April 29, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-20650
_______________
EDWARD GREEN,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(01-CV-1270)
_________________________
Before JONES, SMITH, and
EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Edward Green seeks a certificate of appeal-
ability (“COA”) to challenge the denial of his
petition for writ of habeas corpus. Concluding
that he has failed to make a substantial show-
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
(continued...)
*(...continued)
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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ing of the denial of a constitutional right, we
decline to grant a COA.
I.
In 1992, Green shot and killed Edward Ha-
den and Helen O’Sullivan during an attempted
robbery. In 1993, he was convicted of capital
murder and was sentenced to death. The Tex-
as Court of Criminal Appeals affirmed his con-
viction and sentence. Green v. State, 912
S.W.2d 189 (Tex. Crim. App. 1995), cert.
denied, 516 U.S. 1021 (1996).
Green filed a state application for writ of
habeas corpus, alleging that his trial counsel
was ineffective in failing to investigate and
present certain mitigating evidence, particu-
larly evidence that Green suffered from post-
traumatic stress disorder (“PTSD”). The trial
court entered findings of fact and conclusions
of law recommending that relief be denied.
Based on that recommendation, the Texas
Court of Criminal Appeals denied Green’s ap-
plication. Ex Parte Green, No. 48,502-01
(Tex. Crim. App. Mar. 28, 2001).
On April 13, 2001, Green filed a federal
habeas petition based in part on the claims of
ineffective assistance. The district court de-
nied relief and rejected Green’s request for a
COA. Green then filed his application for a
COA with this court.
II.
To secure a COA, a petitioner must make
a substantial showing of the denial of a consti-
tutional right. 28 U.S.C. § 2253(c)(2). To
meet this standard, Green must demonstrate
that the district court’s rejection of his consti-
tutional claims was debatable or in error.2 In
evaluating whether Green has satisfied that re-
quirement, his arguments must be “viewed
through the lens of the deferential scheme laid
out in 28 U.S.C. § 2254(d).” Barrientes, 221
F.3d at 772.
The claims for which Green requests a
COA involve the allegedly ineffective assis-
tance of trial counsel during the punishment
phase of his trial.3 Green contends that coun-
sel failed to present mitigating evidence, spe-
cifically witness testimony expressing the opin-
ion that his violent conduct is related to his
troubled upbringing and the absence of a sup-
portive family environment. Because these
claims were considered and rejected during
state habeas proceedings, Green is entitled to
federal habeas relief only if he can demonstrate
that the state court’s decision is “contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States.”
2 See Barrientes v. Johnson, 221 F.3d 741, 772
(continued...)
2(...continued)
(5th Cir. 2000); Hughes v. Johnson, 191 F.3d 607,
612 (5th Cir. 1999) (citing Fuller v. Johnson, 114
F.3d 491, 495 (5th Cir. 1997)).
3 In the habeas petition presented to the district
court, Green asserted additional claims of ineffec-
tive assistance, as well as claims that the state in-
troduced false testimony, suppressed exculpatory
evidence, and that the court improperly failed to
instruct the jury as to the possibility of life impris-
onment without parole as an alternative to the
death penalty. In the brief supporting his request
for a COA, however, Green fails to address these
claims. We address only those claims briefed, for
issues not raised in a request for a COA are
waived. Hughes, 191 F.3d at 613 (citation omit-
ted).

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28 U.S.C. § 2254(d)(1).4
To prevail on his claims of ineffective as-
sistance, Green must establish both that coun-
sel’s performance was deficient and that he
was prejudiced by the deficient performance.
Strickland v. Washington, 466 U.S. 668, 687
(1984). Deficiency is established if counsel’s
performance fell below an objective standard
of reasonableness. Id. at 687-88. In making
that determination, we apply a strong pre-
sumption “that trial counsel rendered adequate
assistance and that the challenged conduct was
the product of reasoned trial strategy.” Wil-
kerson v. Collins, 950 F.2d 1054, 1065 (5th
Cir. 1992) (citing Washington, 466 U.S. at
690). Applying that standard, we conclude
that Green’s trial counsel did not render inef-
fective assistance and that the district court’s
denial of relief is not debatable among jurists
of reason. Green therefore has failed to make
a substantial showing of the denial of a consti-
tutional right and is not entitled to a COA.
A.
Green contends that his trial counsel ren-
dered ineffective assistance by failing to inves-
tigate and present the testimony of Leonard
Cucolo and Darrel Sanders, counselors at the
Texas Youth Council’s Giddings State School,
where Green had been incarcerated as a sex
offender. Green presented affidavits in which
Cucolo and Sanders detailed the testimony
they would have offered if called to testify.5
4 Generally, a petitioner also may establish his
entitlement to habeas relief by demonstrating that
the state court adjudication rested on “an unrea-
sonable determination of the facts in light of the
evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(2). The showing is a difficult
one, because “the state court’s factual determina-
tions carry a presumption of correctness; to rebut
them, the petitioner must present clear and convinc-
ing evidence to the contrary.” Smith v. Cockrell,
311 F.3d 661, 667 (5th Cir. 2002) (citing § 2254-
(e)(1)). In the context of a request for a COA,
however, the question is not whether Green has, in
fact, satisfied this demanding standard. See Mil-
ler-El v. Cockrell, 123 S. Ct. 1029, 1041-42
(2003). Rather, we must determine whether the
district court’s conclusion that he has failed to do
so is debatable. Id.
Green contends that the affidavit proffered by
his trial counsel lacked specificity and that, conse-
quently, the state court’s factual findings were in-
sufficiently supported by the evidence submitted.
He fails, however, to present any evidence that
would tend to contradict the state court’s finding
that the affidavit was credible. Further, Green does
not identify particular findings of fact that he
believes are in error as a result of the court’s con-
sideration of the affidavit. Given the absence of
any evidence of factual error, it is not even debat-
able that Green’s conclusional allegations are in-
sufficient to rebut the presumption of correctness
applicable to state court findings of fact.
5 The issues surrounding the belated production
of these affidavits demonstrate the soundness of
our cautious approach to ineffective assistance
claims based on uncalled witnesses and undevel-
oped testimony. See, e.g., Evans v. Cockrell, 285
F.3d 370, 377 (5th Cir. 2002) (stating that com-
plaints of uncalled witnesses are disfavored be-
cause allegations concerning what a witness would
have said are speculative); Lockhart v. McCotter,
782 F.2d 1275, 1282 (5th Cir. 1986) (“Where the
only evidence of a missing witness’ testimony is
from the defendant, this Court views claims of
ineffective assistance with great caution.”). Green
failed to produce affidavit support for his claims
until after the district court had ruled against him.
When submitted, the affidavits did not accord with
Green’s previous descriptions of the testimony the
witnesses would have offered. The district court
chose to consider these affidavits despite the
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The affidavits state the therapists’ shared
opinion that Green’s emotional and behavioral
problems are attributable to the troubled cir-
cumstances surrounding his childhood and the
absence of a supportive family environment.
Green also argues that counsel’s failure ade-
quately to prepare Ramon Campos, a third
counselor from Giddings, to testify resulted in
the omission of relevant mitigating evidence.
Campos filed an affidavit describing the tes-
timony he would have given had he been ade-
quately prepared, relating to the emotional
problems Green developed as a result of the
absence of family support and guidance.
As the district court noted, this is not a case
in which trial counsel failed to present any
punishment phase evidence. In fact, Green’s
attorney called several witnesses during the
punishment phase, including teachers, coaches,
therapists, and family members. The proffered
testimony detailed various events from Green’s
extremely troubled childhood, including the
brutal murder of his father, his mother’s drug
addiction, his confinement to the Giddings
State School, and the resulting absence of a
stable home life.
Several of the witnesses from Giddings tes-
tified that in their interaction with Green, he
displayed a good attitude and had not been a
discipline problem. Despite the introduction of
this considerable mitigation evidence, Green
contends that counsel’s failure to present the
therapists’ testimony, and adequately to pre-
pare Campos to testify, rendered counsel’s
performance constitutionally deficient.
A strategic or tactical decision not to call
particular witnesses does not constitute inef-
fective assistance.6 In his affidavit, Green’s
counsel stated that he chose not to present
additional testimony relating to Giddings, be-
cause he did not believe it would be beneficial.
If that decision was made pursuant to an ade-
quate investigation, it cannot serve as the basis
of an ineffective assistance claim.7 Therefore,
to succeed on his claim, Green must establish
that the omission of the therapists’ testimony
was a consequence of trial counsel’s deficient
investigation in preparation for the punishment
phase.
Counsel “has a duty to make a reasonable
investigation of the defendant’s case or to
make a reasonable decision that a particular in-
vestigation is unnecessary.” Ransom v. John-
son, 126 F.3d 716, 722 (5th Cir. 1997) (citing
Washington, 466 U.S. at 691). Green’s law-
yer submitted an affidavit in the state habeas
proceedings detailing his efforts in preparing
and presenting mitigation evidence. That affi-
davit reflects a thoroughgoing investigation in-
to Green’s background radically different from
the situation in cases in which we have found
5(...continued)
absence of any explanation for their untimeliness.
6 Salazar v. Estelle, 547 F.2d 1226, 1227 (5th
Cir. 1977); cf. Gray v. Lucas, 677 F.2d 1086,
1093 n.5 (5th Cir. 1982) (“While a lawyer’s failure
to investigate a witness who has been identified as
crucial may indicate an inadequate investigation,
the failure to investigate everyone whose name
happens to be mentioned by the defendant does not
suggest ineffective assistance.”).
7 Smith, 311 F.3d at 668 (“So long as counsel
made an adequate investigation, any strategic de-
cisions made as a result of that investigation fall
within the wide range of objectively reasonable
professional assistance.” (citation and internal quo-
tation marks omitted)).

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counsel’s investigation to be deficient.8
B.
Green contends that his trial counsel was
ineffective in failing to introduce evidence on
the effects of PTSD. His complaint centers on
counsel’s failure to introduce a psychological
expert witness and to elicit from Campos cer-
tain testimony pertaining to PTSD.9 Green has
entirely failed to present any evidence that he
suffers from PTSD, other than the Campos af-
fidavit and his own unsubstantiated assertions.
Even assuming Green suffers from the disor-
der, however, counsel’s failure to present evi-
dence relating to PTSD does not satisfy the
deficiency prong of Washington.
Although counsel did not observe any in-
dications of PTSD during trial and did not be-
lieve that Green’s background was consistent
with PTSD, he did attempt to obtain a psycho-
logical evaluation of Green, who then refused
to submit to the evaluation. As a general rule,
a defendant cannot block his attorney’s efforts
and later claim the resulting performance was
constitutionally inadequate.10 Green argues,
however, that his refusal to cooperate did not
free counsel of the obligation to perform a
thorough investigation.
Although a defendant’s failure to cooperate
does not absolve trial counsel of the duty to
make a reasonable investigation, the scope of
that duty may be limited by a lack of coopera-
tion.11 In the case of psychological examina
8 See, e.g., Neal v. Puckett, 286 F.3d 230 (5th
Cir. 2002) (per curiam) (en banc), cert. denied,
123 S. Ct. 963 (2003); Bouchillon v. Collins, 907
F.2d 589 (5th Cir. 1990); Profitt v. Waldron, 831
F.2d 1245 (5th Cir. 1987); Beavers v. Balkcom,
636 F.2d 114 (5th Cir. Unit B Feb. 1981). Much
of the omitted mitigating evidence in these cases
was missed as a result of counsel’s failure to in-
vestigate the defendants’ backgrounds in mental
institutions and prisons. Id. at 691. The trial coun-
sel in Neal, for instance, failed to discover a sub-
stantial amount of mitigating evidence, including
evidence of brutal treatment at the hands of an
alcoholic father, difficult conditions during confine-
ment in a mental institution, and sexual abuse
while petitioner was in prison. 239 F.3d at 689. In
the instant case, by contrast, in addition to inter-
viewing Green and certain family members, trial
counsel subpoenaed Green’s complete Texas Youth
Council records, including his records from Gid-
dings State School, and interviewed employees
from Giddings, including teachers, staff, and
coaches.
9 Campos contends, in his affidavit, that he
would have testified that Green suffers from PTSD
as a consequence of his troubled childhood and that
his violent behavior is related to that disorder. As
the district court pointed out, however, Campos has
never been qualified as an expert competent to
testify with respect to PTSD.
10 See Autry v. McKaskle, 727 F.2d 358, 361
(5th Cir. 1984) (rejecting claim of ineffective as-
sistance of counsel for failure to investigate and
present evidence at punishment where defendant
had instructed his attorney not to fight death pen-
alty); Amos v. Scott, 61 F.3d 333, 348-49 (5th Cir.
1995) (defendant not prejudiced by counsel’s fail-
ure to investigate and present mitigating evidence
where defendant had instructed counsel not to pre-
sent punishment-phase evidence).
11 Bell v. Watkins, 692 F.2d 999, 1009 n.11
(5th Cir. 1982) (citing Gray, 677 F.2d at 1094);
see also Randle v. Scott, 43 F.3d 221, 225 (5th
Cir. 1995) (holding that attorney’s failure to in-
vestigate did not constitute ineffective assistance,
at least in part because defendant had failed to
provide relevant information); Wiley v. Puckett,
969 F.2d 86, 99 (5th Cir. 1992) (holding that at-
torney’s investigation into mitigating evidence may
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tions, a defendant’s refusal to cooperate effec-
tively prevents investigation, rendering coun-
sel’s decision not to pursue the matter further
reasonable. Green’s refusal to submit to an
evaluation therefore precludes him from claim-
ing that counsel was ineffective in failing to
present evidence regarding PTSD.12
III.
Related to Green’s claim of ineffective as-
sistance is his contention that the district court
abused its discretion in refusing his request for
investigative funds filed pursuant to 21 U.S.C.
§ 848(q)(4)(B) and (q)(9). Green sought these
funds primarily for the purpose of retaining a
psychologist able to determine whether he suf-
fers from PTSD.13 We review for abuse of dis-
cretion the denial of investigative assistance.
See Hill v. Johnson, 210 F.3d 481, 487 (5th
Cir. 2000).14 Under § 848(q)(4)(B) and (q)(9),
the district court may authorize funding for
expert or investigatory assistance if the de-
fendant shows both indigence and that the ex-
pert assistance requested is “reasonably neces-
sary for the representation of the defendant.”15
There is no dispute with respect to Green’s
indigence; the question turns on his failure to
establish that the expert assistance requested
was reasonably necessary to his representation.
To demonstrate that assistance is reasonably
necessary, a defendant must couple his request
with a viable constitutional claim that is not
procedurally barred. See Fuller, 114 F.3d at
11(...continued)
reasonably be limited when defendant fails to call
witnesses to attorney’s attention).
12 See Clanton v. Bair, 826 F.2d 1354, 1358
(4th Cir. 1987) (“When a seemingly lucid and ra-
tional client rejects the suggestion of a psychiatric
evaluation and there is no indication of a mental or
emotional problem, a trial lawyer may reasonably
forego insistence upon an investigation.”).
Although this case differs slightly from Clanton in
that trial counsel was aware of some of the difficult
circumstances of Green’s childhood, counsel did
not observe any indications of PTSD during trial
nor did he believe that Green’s background was
consistent with PTSD. As we have said, counsel’s
failure to discover and present evidence of a crimi-
nal defendant’s alleged mental disorder does not
constitute ineffective assistance in the absence of
“some indication that mental impairment might
prove a promising line of defense.” Byrne v. But-
ler, 845 F.2d 501, 513 (5th Cir. 1988); see also
Wiley, 969 F.2d at 100 (“Because nothing alerted
[trial counsel] to the possibility of mental impair-
ment as a mitigating factor, we find the decision
not to obtain a psychiatric evaluation entirely
reasonable.”).
13 In addition to funds for expert psychological
assistance, Green’s original motion in the district
court requested funding to locate and interview var-
ious individuals alleged to have information per-
taining to his claims. Green mentions these ad-
ditional funding requests only in passing and states
merely that the requests are governed by the same
legal standards as is his request for psychological
expert assistance. He makes no attempt to describe
the testimony these individuals would offer or how
such testimony would support his claim of ineffec-
tive assistance. He therefore has waived these ad-
ditional claims as a result of his failure adequately
to brief the issue. Lookingbill v. Cockrell, 293
F.3d 256, 263 (5th Cir. 2002), cert. denied, 123
S. Ct. 878 (2003).
14 A COA is not required to appeal the denial of
relief under § 848(q)(4)(B). See Hill, 210 F.3d at
487 n.2 (citing Sterling v. Scott, 57 F.3d 451, 454
n.3 (5th Cir. 1995)).
15 28 U.S.C. § 848(q)(4)(b), (q)(9); Hill, 210
F.3d at 487 (citing Fuller v. Johnson, 114 F.3d
491, 502 (5th Cir. 1997)).

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502.
Even if Green were able to secure a psy-
chological evaluation establishing that he suf-
fers from PTSD, however, it would not affect
the disposition of his ineffective assistance
claim. As we have explained, trial counsel’s
failure to introduce evidence of Green’s al-
leged affliction with PTSD did not constitute
ineffective assistance of counsel, especially in
light of the fact that Green refused to cooper-
ate with counsel’s attempts to obtain a psycho-
logical evaluation at the time of trial. If it is
now established that Green suffers from
PTSD, counsel’s performance would not
thereby be retroactively rendered deficient.
In light of the absence of any relationship
between the expert assistance sought and a vi-
able constitutional claim, the district court did
not abuse its discretion in concluding that a
psychological expert was not reasonably
necessary.
The application for a COA is DENIED.

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