Filed: Nov. 03, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D REVISED NOVEMBER 3, 2005 IN THE UNITED STATES COURT OF APPEALS October 27, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 05 - 70010 _ GUY STEPHEN ALEXANDER, Petitioner - Appellant, VERSUS DOUG DRETKE, Director, Texas Department of Criminal Justice, Institutional Division, Respondent - Appellee. _ Appeal from the United States District Court for the Southern District of Texas, Houston Division _ Before DAVIS, SMITH and DENNIS
Summary: United States Court of Appeals Fifth Circuit F I L E D REVISED NOVEMBER 3, 2005 IN THE UNITED STATES COURT OF APPEALS October 27, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 05 - 70010 _ GUY STEPHEN ALEXANDER, Petitioner - Appellant, VERSUS DOUG DRETKE, Director, Texas Department of Criminal Justice, Institutional Division, Respondent - Appellee. _ Appeal from the United States District Court for the Southern District of Texas, Houston Division _ Before DAVIS, SMITH and DENNIS,..
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United States Court of Appeals
Fifth Circuit
F I L E D
REVISED NOVEMBER 3, 2005
IN THE UNITED STATES COURT OF APPEALS October 27, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________________ Clerk
No. 05 - 70010
_____________________________
GUY STEPHEN ALEXANDER,
Petitioner - Appellant,
VERSUS
DOUG DRETKE, Director,
Texas Department of Criminal Justice, Institutional Division,
Respondent - Appellee.
__________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston Division
___________________________________________________
Before DAVIS, SMITH and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
Petitioner Guy Stephen Alexander was convicted of capital
murder in Texas and sentenced to death. Alexander filed a petition
for writ of habeas corpus in the District Court pursuant to 28
U.S.C. § 2254 which was dismissed. Alexander now requests that
this Court issue a certificate of appealability (COA) pursuant to
28 U.S.C. § 2253(c) on two claims: (1) denial of right to
*
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this opinion should not be published and is not precedent except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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individualized sentencing by the trial court when it excluded
expert testimony; (2) ineffective assistance of counsel. For the
following reasons, we grant Alexander’s application for COA on the
ineffective assistance of counsel (IAC) claim, but we deny a COA on
his remaining claim.
I.
The Court of Criminal Appeals succinctly summarized the facts
in its direct appeal opinion as follows:
Wilma Wofford, an elderly lady was murdered on the
morning of January 24, 1989, in Houston. The deceased
had suffered several lacerations to the head that were
consistent with being struck by a blunt instrument.
Portions of a broken brick were found near her body.
Around the deceased’s neck was an electrical cord,
another cord, and a cloth belt. Her death was a result
of asphyxiation. The deceased’s automobile was missing.
Other personal property missing from the residence
included two rings and some silver coins, which were sold
to a pawnshop. These items were sold by [Alexander] on
January 24, 1989. Police ultimately recovered the
television and binoculars. Four fingerprints and three
palm prints, all matching [Alexander’s] were found in the
deceased’s premises. A blood-stained print of a tennis
shoe, matching [Alexander’s] tennis shoe, was found on
the floor of the deceased’s premises.
On January 26, 1989, Officer Kenneth Broadis and two
other officers of the Jackson County Sheriff’s Department
in Mississippi observed [Alexander] in a fast food
restaurant in Moss Point, Mississippi. [Alexander]
appeared to be acting suspiciously. A short time later
Officer Thomas Lamb of the Jackson County, Mississippi
Sheriff’s Department was on patrol when he observed
[Alexander] driving the deceased’s automobile in excess
of the speed limit. Lamb had been advised that the
automobile was stolen and was being sought in connection
with a homicide case in Houston, Texas. After a brief
pursuit, Lamb pulled the vehicle over and apprehended
[Alexander]. In [Alexander’s] possession were several of
the deceased’s credit cards. In the automobile police
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discovered the deceased’s typewriter and a set of keys,
one of which fit the deadbolt lock at the deceased’s
home.
On January 27, 1989, [Alexander] gave a written
statement in which he admitted killing the deceased. In
the statement he detailed exactly how he had murdered her
and what property he had taken from her. At
[Alexander’s] trial the statement was read to the jury
over [Alexander’s] objection.
Alexander v. State, No. 70941, slip op. at 1-2.
In August 1989, Alexander was convicted and sentenced to death
for the capital offense of murdering Wilma Wofford in the course of
committing or attempting to commit robbery. The Texas Court of
Criminal Appeals affirmed that judgment and the United States
Supreme Court denied certiorari. Subsequently, Alexander filed
petitions for state habeas relief which were denied. He then
sought federal habeas relief, which was also denied.
II.
Because Alexander filed his § 2254 petition for a writ of
habeas corpus after April 24, 1996 (the effective date of the
Antiterrorism and Effective Death Penalty Act (AEDPA)), his
petition is subject to the procedures imposed by AEDPA and,
therefore, his appeal is governed by the COA requirements of § 2253
(c). Sterling v. Dretke,100 Fed.Appx. 239, 241 (5th Cir. 2004),
citing Slack v. McDaniel, 529 U.S. 473, 478 (2000).
In order to receive a COA, Alexander must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.A. §
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2253(c)(2). Meeting this standard “requires a petitioner to
demonstrate that ‘reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate to
deserve encouragement to proceed further’.” Sterling, 100 Fed.
Appx. at 242, citing Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). We evaluate petitioner’s application with the understanding
that “any doubts as to whether a COA should issue must be resolved
in [Alexander’s] favor.” Hernandez v. Johnson,
213 F.3d 243, 248
(5th Cir. 2000).
A. Whether a COA should issue on Alexander’s claim that he was
denied the right to individualized sentencing when the trial
court refused to admit the expert testimony of Dr. James
Marquart.
At trial, the defense attempted to call Dr. Marquart as an
expert witness to testify on the inaccuracy of jury predictions of
future dangerousness and prison behavior. Marquart would have
testified that juries cannot predict with any accuracy the future
dangerousness of a capital murderer. More particularly, he would
have stated that in 8 out of 10 cases where people are predicted to
be dangerous, they have no significant disciplinary problems, which
demonstrates that jurors err in the direction of predicting future
dangerousness. The prosecution objected to Dr. Marquart’s testimony
as irrelevant, because Dr. Marquart had not interviewed Alexander
and could offer no testimony about Alexander’s individual threat to
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society. The trial court sustained the objection and excluded
Marquart’s testimony from the trial. Alexander argues that the
evidence was proper as mitigating evidence and, therefore,
exclusion of it from trial raises at least a debatable claim about
whether he was denied a constitutional right.
In its Opinion on Denial of Habeas Corpus, the district court
found that the trial court did not err in excluding Marquart’s
testimony because the testimony would not have aided the jury in
answering the special issue as required by Texas law. We are
persuaded by the district court’s conclusion that, where the law of
Texas requires the jury to make a finding of future dangerousness,
then an expert witness’ testimony criticizing that inquiry is
irrelevant. As the district court said,
Although Marquart felt that a jury could not
adequately conclude whether or not Alexander would be a
future danger, Texas required the jury to engage in that
analysis. Marquart’s testimony commented on Texas law,
without addressing Alexander’s specific danger to
society. His opinion of Texas law added nothing to the
jury’s consideration of the special issues. See Green v.
Johnson, 116 F.3d 1115, 1126 (5th Cir. 1997)(finding no
error in the exclusion of Marquart’s “generalized
critique of the accuracy of the future dangerousness
prediction”).
DC Opinion, 6.
The district court was clearly correct in denying relief on
this claim. The district court’s analysis leaves nothing open for
debate among reasonable jurists on this issue. We therefore deny
COA on this claim.
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B. Whether a COA should issue on Alexander’s ineffective
assistance of counsel claim during the sentencing phase.
In order to prevail on a claim of ineffective assistance of
counsel, a petitioner must show (1) that counsel’s performance was
deficient and (2) that the deficiency prejudiced the defense.
Wiggins v. Smith, 539 U.S. 510, 521 (2003), citing Strickland v.
Washington,
466 U.S. 668, 687 (1984). A petitioner must demonstrate
that counsel’s performance “fell below an objective standard of
reasonableness” in order to establish a deficient performance.
Strickland, 466 U.S. at 688.
In this case, Alexander’s claim stems from what he depicts as
trial counsel’s failure to adequately investigate his tumultuous
family and psychological background. During the punishment phase,
Alexander’s trial attorneys presented the expert testimony of two
psychological witnesses - Dr. Walter Quijano and Dr. Sally Webster.
Additionally, according to trial counsel’s affidavits submitted to
the state habeas court, they interviewed “several” of Alexander’s
family members, (although they specifically discuss only
Alexander’s sister and his father). The attorneys’ affidavits
indicate that the father was somewhat unavailable and that the
sister’s view was compromised by her “position in the family.” The
attorneys both claim to have been unaware of any evidence
regarding: “disturbed family origin; genetic susceptibility to drug
and alcohol dependency; orthopedic birth injury and subsequent
uncorrected disability; parental medical neglect; significant
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psychological disorder in childhood; developmental intellectual
deficits and learning difficulties; peer isolation, alienation, and
rejection; traumatic sexual exposure and precocious onset of
puberty; and inadequate parental supervision and structure” that
they failed to present. The state habeas court found that trial
counsel made a reasonable effort to investigate and present facts
for mitigation because it interviewed Alexander, his family
members, and mental-health experts. The court also found that
Alexander and his family were not completely forthcoming with trial
counsel.
Alexander argues that trial counsel failed to offer any
meaningful explanation of his family background or the difficulties
of his childhood. Among other things, Alexander specifically
alleges that the following amount to ineffective assistance of
counsel on the part of his trial lawyers:
(1) Allowing Alexander’s father’s testimony that
Alexander had a “normal” family to go uncontested when
there was readily discoverable evidence that Alexander’s
father was homosexual, a situation which led to “ongoing
strife” in Alexander’s family.
(2) Not reviewing the family’s medical records,
which would have demonstrated significant evidence of
Alexander’s mother’s dependence on prescription
medication and Alexander’s significant orthopedic
impairments which led to his social isolation at school.
(3) Failing to discuss and produce Alexander’s
brother’s testimony that their father had a “mean streak”
and was bad tempered.
(4) Not discovering the substantial evidence of a
severe psychological disorder in Alexander’s childhood.
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This evidence could easily have been obtained through a review
of Alexander’s school records. These records include, among
other things, a history of transferring from school to school
and a reported suicide attempt.
While counsel conducted considerable investigation designed to
discover mitigating evidence and produced substantual evidence
during the punishment phase, the Supreme Court has suggested that
a reasonable investigation involves consideration of such factors
as “medical history, educational history, employment and training
history, family and social history, prior adult and juvenile
correctional experience, and religious and cultural influences.”
Wiggins v. Smith, 539 U.S. 510, 524 (2003). Because we find that
reasonable jurists could debate whether or not additional evidence
of Alexander’s background was available to and accessible by trial
counsel and whether that evidence could have influenced the jury
to not impose the death penalty, we grant a COA on Alexander’s
ineffective assistance of counsel claim.
The clerk will establish a briefing schedule to allow the
parties to file supplemental briefs on this claim.
COA granted in part and denied in part.
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