KING, Circuit Judge:
Petitioner-Appellant Thomas Edwin Loden raped and murdered Leesa Marie Gray in 2000. After pleading guilty, Loden was sentenced to death by a Mississippi state court. Loden now appeals the district court's denial of his petition for a writ of habeas corpus. That petition was premised on the denial of Loden's constitutional right to the effective assistance of counsel during the guilt and sentencing
Thomas Loden worked as a recruiter for the United States Marine Corps in Vicksburg, Mississippi, where he lived with his wife and daughter. He had travelled to Itawamba County, Mississippi, on June 21, 2000 to visit his ailing grandmother, Rena Loden, at her farm. On June 22, Loden claims he spoke to his wife on the phone, and she told him that she had just had "phone sex" with a partner at the law firm at which she worked as a paralegal and that she planned on having sexual intercourse with that partner while Loden was away.
Shortly thereafter, at around 9:00 p.m., Loden went into Comer's Restaurant, where Leesa Marie Gray, the victim, worked as a waitress. He had been in the restaurant earlier that day, and, according to witnesses, he had attempted to flirt with Gray. Loden ordered a cheeseburger to go and then left the restaurant. After Gray left work, at around 10:30 p.m., her car tire went flat on her drive home. Loden claims he saw her car by the side of the road and stopped. Loden then told Gray that he was in the Marine Corps and asked if she would ever be interested in enlisting. He claims that she replied "[n]o, that would be the last thing I'd want to do with my life." Loden states that her response enraged him, and he then kidnapped her in his van. He then raped her repeatedly and strangled her to death. Loden used a camcorder to record a substantial portion of his crime. The video shows Loden forcing Gray to perform fellatio on him, vaginally raping her, digitally penetrating her vagina and anus, and raping her repeatedly with an object, specifically a cucumber. At one point, Loden instructs Gray to smile so that he can see her braces. At another point, after he digitally penetrates her vagina, he states: "You really were a virgin, weren't you?" The video stops, and, when it restarts, Loden is seen twisting the breast of Gray, at that point unconscious, apparently attempting to return her to consciousness. After another break in the video, Gray's dead body is seen posed in the van with the cucumber forced into her vagina. Loden removes and reinserts the cucumber several times before the videotape stops. After Loden had murdered Gray, he went into his grandmother's house and fell asleep.
When Gray did not return home from work that night, the police began investigating her disappearance. Witnesses reported that Loden had arrived at the restaurant in a van shortly before closing and ordered food. They also reported that he had been flirting with Gray earlier in the day. The police went to Loden's grandmother's farm to speak with him, and one of his grandmother's helpers informed them that Loden was asleep in the house. The officers left and returned later. When they returned, they spoke with Loden's grandmother, who informed them that Loden had left to go fishing at a nearby lake. The officers went to look for Loden, but could not find him. When they got back to the house, Ms. Loden gave her consent for the officers to search her property. The officers discovered a pair of shorts with blood on them in Loden's room and a rope tied into a handcuff-style knot in Ms. Loden's car. They then obtained a search warrant for the property and Loden's van. When the crime lab processed the van, they found Gray's body and, among other evidence, the camcorder with the video Loden made of his crime.
That same day, Loden was found lying by the side of a road in Itawamba County, Mississippi. His wrists were slashed and
Loden was indicted for capital murder, rape, and sexual battery in Mississippi state court. James Johnstone, a private attorney, was appointed to represent Loden. Johnstone asked David Daniels, another attorney, to associate as his co-counsel in Loden's case.
Johnstone and Daniels filed several motions in Loden's case, two of which are relevant for purposes of this appeal. First, they filed a motion to suppress evidence obtained during the search of Loden's grandmother's property, including the vehicles on it, and Loden's confession as obtained in violation of the Fourth and Fifth Amendments, respectively. Second, they moved the court to provide funds so that they could hire an expert in the field of mitigation investigation. The trial court denied both motions, though, as to the second motion, the court told Loden's attorneys, "I'll give you an opportunity to tell me if you can locate any authority for this other than the fact that [the expert has] done it in the past. I would like to know what the courts of this country have said about this before I authorize this expenditure." Johnstone told the court: "We'll look and provide that for you, Your Honor." Neither Johnstone nor Daniels ever furnished any such supplemental authority to the court.
After the motion for funds was denied, Johnstone did not conduct any mitigation investigation during his representation of Loden. Daniels claims that he conducted a mitigation investigation by asking about mitigating issues when he interviewed witnesses, but the witnesses to whom he claims to have spoken contradict his claims. Further, Loden argues that neither of his attorneys spoke to the attorney with whom his wife was having an affair, who could have verified Loden's claim that his wife was taunting him about her infidelity on the night of the murder. Loden also argues that his attorneys failed to interview Loden's military colleagues and to request his military records.
Further, Loden claims that his attorneys provided him with erroneous advice about his appellate rights after a guilty plea. Loden claims that his attorneys told him that if he pleaded guilty and received the death penalty, "the pre-trial motions would be reviewed by the Supreme Court of Mississippi under a heightened scrutiny review which applies to all death sentences." He claims that they assured him "that the rulings on the suppression motions were reviewable by the Supreme Court even if I pled [sic] guilty." A letter Loden sent to Daniels after he pleaded guilty appears to lend credence to Loden's claim that he misunderstood his appellate rights. Johnstone's recollection of his advice is somewhat different. He states in his affidavit:
In his deposition, Daniels further states that he explained to Loden that the Mississippi Supreme Court's automatic review of the sentence of death meant the court would review "[t]he Judge's finding, the Judge's sentence, whether or not evidence supported the sentence, whether or not there was a proper finding regarding the aggravators and mitigators, whether or not he killed, attempted to kill, whether legal force had been contemplated and those types of things." Daniels states that Loden understood that by pleading guilty, he was waiving his right to appeal the adverse rulings on the suppression motions and that the automatic review may not cover those issues. Loden pleaded guilty to all counts in the indictment. At a hearing, prior to accepting his guilty plea, the trial court advised him:
At that same hearing, Loden was sentenced. During the sentencing portion of the hearing, Loden's counsel told the court that "Mr. Loden has elected to and has instructed us that he desires to waive presentation of this mitigation evidence for reasons I feel he will explain to the Court when given an opportunity to make a statement." Loden had also instructed Daniels and Johnstone not to object to any of the State's evidence, not to cross-examine any of the State's witnesses, and not to make any closing argument at the sentencing hearing. Nevertheless, counsel summarized the mitigation evidence they would have presented had Loden not so instructed them:
Loden then made a statement at the hearing — though in place of his attorneys' closing arguments, not as testimony — expressing remorse for his actions to Gray's family, stating that he had tried to keep the proceedings as short and painless as possible for everyone, and that he hoped Gray's family would have some sense of justice when they left the court.
The trial court sentenced Loden to death.
Shortly after Loden was sentenced to death, Daniels accepted a position with the local district attorney's office, and the Mississippi Office of Capital Defense was appointed to represent Loden on appeal.
Loden then filed a second petition for post-conviction relief asserting the arguments addressed herein, among others that are not a part of this appeal.
As part of the habeas petition, Loden has come forward with what he characterizes as substantial additional mitigating evidence, summarized as follows. Loden's father was physically and sexually abusive towards Loden's mother, and, given that the family shared a single bedroom, Loden likely witnessed this abuse. Loden's mother would leave him and his sister alone in the house for days at a time. After his parents divorced, Loden went to live with his father, where Loden's step-mother abused him physically. Further, he was molested on several occasions by an adult male at a vacation Bible school that he attended. When Loden moved back to his mother's custody, his step-father drank heavily and beat him repeatedly. He also beat Loden's mother in front of Loden. Loden has attempted suicide several times, and his sister has attempted suicide as well.
After further shuffling back and forth between his parents, Loden went to live with his grandparents on their family farm. Loden was close to his grandparents, and Loden has proffered several affidavits from friends of Loden's in high school attesting to his good character. Loden did well academically in high school.
Loden was highly regarded in the Marine Corps. Loden was selected as an "outstanding recruit" from his platoon. He also received laudatory performance reviews and was promoted to the rank of Gunnery Sergeant. He was awarded, inter alia, the Navy Achievement Medal three times, the Good Conduct Medal five times, and a Combat Action Ribbon. Loden was deployed to Iraq during the Gulf War. During his deployment, he saw a friend, who had just gotten married and had a baby, killed by "friendly" fire. After
Loden has a daughter with his third wife, and he frequently acted as the primary caregiver to his daughter. Loden was transferred to a job as a military recruiter and presents testimony that it is a difficult and stressful post due to the recruiting quotas.
Additionally, a psychologist employed by habeas counsel has diagnosed Loden with chronic Post-traumatic Stress Disorder due to his combat experience, complex Post-traumatic Stress Disorder due to abuse in his childhood, and Borderline Personality Disorder. Further, the psychologist diagnosed Loden as having suffered a localized episode of dissociative amnesia during the commission of the crime. Additionally, the defense psychologist originally retained by Loden's trial counsel, Dr. O'Brien, has stated in an affidavit that, had he been privy to the information relied on by Loden's habeas psychologist, he would have reached the same conclusions and diagnoses as the habeas psychologist.
The Mississippi Supreme Court denied Loden's second petition for post-conviction relief for reasons that will be discussed below. Loden v. State, 43 So.3d 365, 401 (Miss.2010). Loden then filed the instant petition for a writ of habeas corpus in the United States District Court for the Northern District of Mississippi. The District Court denied Loden's petition, but granted a certificate of appealability on five issues: (1) trial counsel's failure to develop mitigation evidence; (2) the "effect" of Loden's "guilty plea and waiver of jury sentencing;" (3) "defense counsel's litigation of the case;" (4) the cumulative effect of trial counsel's performance; and (5) the performance of appellate counsel.
Federal habeas corpus review of state court decisions is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2254. Under AEDPA, a federal court cannot issue a writ of habeas corpus with respect to a claim adjudicated on the merits by a state court unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Because of this highly deferential standard of review, "[t]he question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Under AEDPA, "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).
When, as here, a habeas petitioner's claim has been adjudicated on the merits in state court, "review under § 2254(d)(1) is limited to the record that was before the state court." Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).
Loden first argues that he was deprived of his constitutional right to the effective assistance of counsel because his trial counsel failed to accurately advise him of the scope of his appellate rights. According to Loden, his trial counsel inaccurately informed him that, if he pleaded guilty, the trial court's adverse rulings on his suppression motions would still be examined during the Mississippi Supreme Court's automatic review of his case. That is not the case, and, as such, the Mississippi Supreme Court did not address Loden's suppression motions on direct appeal.
The Sixth Amendment right of criminal defendants to the assistance of counsel includes the right to the effective assistance of counsel. Carty v. Thaler, 583 F.3d 244, 257 (5th Cir.2009). An ineffective assistance of counsel claim has two components: (1) the defendant must show that his attorney's performance was deficient; and (2) he must show that he was prejudiced by that deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "To show deficient performance, `the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Reed v. Stephens, 739 F.3d 753, 773 (5th Cir.2014) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Counsel's performance is judged based on prevailing norms of practice, and judicial scrutiny of counsel's performance must be highly deferential to avoid "the distorting effects of hindsight." Carty, 583 F.3d at 258. To show prejudice, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
The Sixth Amendment right to the effective assistance of counsel applies at "critical stages of the criminal proceedings." Missouri v. Frye, ___ U.S. ___, ___, 132 S.Ct. 1399, 1405, 182 L.Ed.2d 379 (2012) (internal quotation marks omitted). The decision to plead guilty is a critical stage of criminal proceedings. Id. "In cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show `a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Id. at 1409 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).
We do not address the first Strickland element, as we conclude that the district court did not err in holding that Loden failed to meet his AEDPA burden as to Strickland prejudice. As an initial matter, the Mississippi Supreme Court expressly did not rule on the prejudice element of the Strickland test. See Loden, 971 So.2d at 574. As such, the Mississippi Supreme Court's decision is not entitled to AEDPA deference as to that element. See Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) ("Because the state courts found the representation adequate, they never reached the issue of prejudice, and
Assuming arguendo that Loden's attorneys' performance was deficient, he has failed to show that the state court's decision that he was not prejudiced by that performance is an unreasonable application of clearly established federal law or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Loden testified during the habeas proceedings in the state trial court. He testified regarding his interpretation of his attorney's advice and stated that he would not have pleaded guilty but for that erroneous advice. Yet Loden's assertion that he would not have pleaded guilty had he known review of the suppression motions would be unavailable is contradicted by his statement to Gray's family at his sentencing hearing. At the sentencing hearing, Loden apologized to Gray's family and stated, "I hope that by my actions here today you may see that I am trying to right a wrong," and "I am sorry for the delay, and I hope that you may have some sense of justice when you leave here today." Loden also stated that he had "tried to keep this as short and as painless as possible for everyone." Loden's statements indicate that he pleaded guilty as an offering of contrition to Gray's family and an attempt to spare them a lengthy trial and grant them some measure of closure. Loden's statements were also consistent with his earlier representations, made shortly after he had murdered Gray, to the district attorney that he wanted to plead guilty in order to allow his family and Gray's family to move forward, statements which were the subject of cross-examination during Loden's post-conviction hearing. In contrast, Loden testified during the post-conviction hearing that he only pleaded guilty in order to obtain a more searching review of the denial of his suppression motions by the Mississippi Supreme Court, a review he believed was available based on the (allegedly) erroneous advice of his attorneys.
In summation at the post-conviction hearing, the State pressed the issue, arguing: "What has happened here is at some point Mr. Loden actually felt guilty and tried to do the right thing and pled [sic] guilty, and he's gotten down here and he doesn't much like it." Moreover, the state court habeas judge was also the judge who had presided over Loden's guilty plea and sentencing and who therefore had heard Loden's statement to Gray's family firsthand. Given that the trial court heard Loden's testimony and was able to assess his credibility, the trial court's finding that Loden was not prejudiced by counsel's deficient performance was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The state trial court was free to conclude, based on Loden's testimony, that Loden understood his appellate rights at the time of trial or that the other considerations that prompted Loden to plead guilty would nevertheless have motivated him to maintain a guilty plea even had he known he would be unable to appeal the trial court's rulings on his suppression motions.
Further, the state habeas judge was the same judge who advised Loden of his appellate rights during his plea colloquy, which included an admonition that Loden would have no right to appeal a
Based on the Mississippi state court's ability to observe Loden's testimony firsthand and these contradictions in Loden's arguments, we cannot say that the Mississippi state court's finding that Loden was not prejudiced by his attorney's (purportedly) deficient performance was unreasonable. As such, the Mississippi courts' decision that Loden is not entitled to habeas relief on the basis of his attorneys' advice regarding his appellate rights was not an unreasonable application of clearly established federal law as interpreted by the Supreme Court of the United States or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Loden's second argument is that his right to the effective assistance of counsel was violated by his attorneys' failure to prepare a mitigation case. Defense attorneys in capital cases have an "`obligation to conduct a thorough investigation of the defendant's background.'" Porter v. McCollum, 558 U.S. 30, 39, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (quoting Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Such an investigation requires that defense counsel interview witnesses and request relevant records, such as school, medical, or military service records. Id. Further, when such interviews or records suggest "pertinent avenues for investigation," the defense attorney must follow up on those leads. Id. at 40, 120 S.Ct. 1495; accord Wiggins v. Smith, 539 U.S. 510, 525, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ("As the
We begin with the prejudice element first, as, in this case, it is dispositive. Loden's argument that he was prejudiced by his attorneys' mitigation investigation
At this point, the AEDPA standard of review bears reiterating. We may only set aside the Mississippi Supreme Court's judgment if it was "contrary to, or involved an unreasonable application of,
Loden here instructed his attorneys not to present any mitigation evidence. Daniels, one of his attorneys, told the court at the sentencing hearing that Loden had "elected to and has instructed us that he desires to waive presentation of this mitigation evidence for reasons I feel he will explain to the Court when given an opportunity to make a statement." Loden had also instructed his attorneys not to conduct any cross-examination of the State's witnesses and not to object to any of the State's evidence, an instruction that his attorneys honored. The trial court specifically inquired as to Loden's instruction not to cross-examine witnesses or object to evidence:
Loden further instructed his attorneys not to make any closing argument during the sentencing phase, instead electing to make a brief statement himself apologizing to Gray's family and stating, "I hope that by my actions here today you may see that I am trying to right a wrong," and "I am sorry for the delay, and I hope that you may have some sense of justice when you leave here today."
With those facts before it, we cannot say that the Mississippi Supreme Court's application of Landrigan in this case was an unreasonable application of clearly established Supreme Court precedent. Loden's instruction to his attorneys to not only refrain from putting on any mitigation case, but also to refrain from objecting to the State's proffered evidence, cross-examining the State's witnesses, and making closing arguments lends support to an inference that Loden's decision not to present a mitigation case was firm. Daniels's statement to the trial court further indicates that Loden's decision was a considered one and that he had explained his reasoning to his attorneys. While the trial court did not inquire as to Loden's reasons for declining to present a mitigation case, Loden's statement alludes to a likely motivation. Loden's words of apology suggest that he believed declining to object, cross-examine,
As such, given the evidence in the record — and the AEDPA standard of review — we must conclude that the district court's denial of Loden's claim of ineffective assistance of counsel based on his attorney's mitigation investigation was not error.
We also hold that the Mississippi Supreme Court's rejection of Loden's argument that the constitutionally ineffective advice of his attorneys led him to waive his right to jury sentencing was not an unreasonable application of clearly established Federal law as determined by the Supreme Court. During the plea colloquy, the trial judge explained to Loden that he had the right to be sentenced by a jury, that the jury would weigh the aggravating factors against the mitigating factors, and that, in order to receive the death penalty, the jury would have to unanimously agree that the aggravating factors outweighed the mitigating factors. The judge then asked Loden if he understood those rights and waived them. The trial judge's careful explanation of Loden's right to jury sentencing on the record undermines Loden's present attempts to show Strickland prejudice. See Frye, ___ U.S. at ___, 132 S.Ct. at 1406-07 ("Before a guilty plea is entered the defendant's understanding of the plea and its consequences can be established on the record. This affords the State substantial protection against later claims that the plea was the result of inadequate advice."). As such, the Mississippi Supreme Court's decision that Loden could not show that — but for any unprofessional advice by his attorneys — he would not have waived jury sentencing was not an unreasonable application of clearly established Federal law as determined by the Supreme Court.
Lastly, Loden argues that his appellate counsel was constitutionally deficient. A criminal defendant has a Sixth Amendment right to the effective assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Claims for ineffective assistance of appellate counsel are governed by the two-part Strickland standard. Dorsey v. Stephens, 720 F.3d 309, 319 (5th Cir.2013).
Beginning with the first part of that standard, Loden has failed to show that his appellate attorneys' performance was deficient. As an initial matter, the Mississippi Supreme Court did not address this element of the Strickland standard, and, as such, this claim is reviewed de novo, not under AEDPA. See Rompilla, 545 U.S. at 390, 125 S.Ct. 2456. In order to show that his appellate lawyers were deficient, Loden must show "`that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment' based on `an objective standard of reasonableness.'" Dorsey, 720 F.3d at 320 (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). Counsel is "`strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Pinholster, ___ U.S. at ___, 131 S.Ct. at 1403 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Here, Loden's proffered evidence of deficient performance is an affidavit from his appellate attorney, Andre de Gruy. De Gruy states in his affidavit that he did not raise certain issues relating to Loden's mental state or social history. He also states, however, that Mississippi law was unclear at the time he represented Mr. Loden, and, therefore, he believed that the additional claims would have to be raised in post-conviction proceedings challenging the sentence. Given the apparent ambiguity in Mississippi law at the time counsel made his decision, Loden has failed to rebut the "strong presumption" that his attorneys' decision was the result of "reasonable professional judgment." Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052.
As to the second part of the Strickland standard, Loden has failed to show that the Mississippi Supreme Court's conclusion that he was not prejudiced was an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. In order to show prejudice under Strickland, a defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. Here, that requires Loden to show a reasonable probability that the result of his direct appeal would have been different. Loden has failed to make such a showing here, as he has waived the issue for failure to adequately brief it. See United States v. Scroggins, 599 F.3d 433, 446 (5th Cir.2010) ("A party that asserts an argument on appeal, but fails to adequately brief it, is deemed to have waived it."). Loden's argument here is that an adequate performance by appellate counsel would have changed the outcome of his Motion to Vacate Guilty Plea before the
For the foregoing reasons, the judgment of the district court is AFFIRMED.