Date of Execution:
and foremost I would like to tell the victims’ families that
I am sorry because I don’t feel like I am guilty. I am sorry
for the pain all of them have gone through during holidays
and birthdays. They are without their loved ones.
I have said from the beginning and I
will say it again that I am innocent. I did not kill no one.
I feel like this is the Lord’s will that will be done.
I love you all. You know it. Don’t
Tell my brothers I love them. You
all be strong.
Age: 34 (19)
Executed: Oct. 28, 1997
Education level: High school graduate or GED
Ransom was executed for his involvement in a July
1, 1983, robbery that left four people dead at the Malibu Grand Prix
game room in southwest Houston.
In his trial, he testified that he was occupied
with a video game when the killings occurred. One of Ransom's
accomplices, Richard Wilkerson, also was executed.
The other, who was 16 at the time, received a life sentence.
Kenneth Ray Ransom, a 20-year-old High
school plumber, was involved with two others in the stabbing murders
of four employees at the Houston Malibu Grand Prix arcade during a
robbery on July 1, 1983.
“A manager was found
lying dead in his office,” former Houston homicide detective J.C.
Mosier said. “The others were found in the restroom.”
The 18-year-old manager, Anil Varughese, and three other employees,
Rod Harris, 22, Arnold Pequeno, 19, and his brother Joerene Pequeno,
18, had been repeatedly stabbed with kitchen knives in the chest,
abdomen, neck, and face. The throats of the manager and two of the
victims were slashed with a 4-inch-long knife taken from Ransom’s
girlfriend dishes drainer.
Ransom, who had previous prison terms for
burglary and auto theft, had accompanied Richard Wilkerson, 19, and
James Edward Randle, 16, to the recreation center between midnight
and 1 a.m., so that Wilkerson could pick up his last paycheck.
Wilkerson, a former employee of the arcade, had been fired two weeks
before the slayings for poor job performance.
Houston Police investigators believed robbery was the motive of the
killings. The three young men apparently didn’t want the victims to
witness their crime. Wilkerson made the manager open a safe
containing about $1,300, robbed the money, and then killed Varughese
in his office while his cousin, Randle, and Ransom were slaughtering
the other employees in the bathroom.
bodies were found around 8:15 a.m. by a female employee and a
Federal Express delivery man after they arrived at the arcade and
found the front door wide open.
Randle were arrested on July 1, 1983. They both admitted their
participation in the murders of the four employees while questioned
at the police headquarters.
Ransom, accompanied by
his mother, stepfather and attorney, turned himself into the police
on July 5, 1983. He was wearing a class ring and watch, both of
which had belonged to Arnold Pequeño and were taken after his death.
Wilkerson was charged with capital murder in the death of Varughese
on January 1984. He died by injection on Aug. 31, 1993.
Randle was sentenced to life in prison on March 1984. He didn’t face
capital punishment because he was 16 at the time of the slayings.
Randle will be eligible for parole in 2003.
was the last to be tried. He told a jury, composed of four women and
eight men, that he was not aware of his friends’ intentions to rob
the arcade and kill the employees. He said that he tried to stop
them from killing the victims, but they had threatened to kill him.
On June 15, 1984, the jury in State District Judge William Hatten’s
court found Ransom guilty of capital murder for the murder of Arnold
Ransom first appealed on June 14, 1989,
raising 14 points of error in his trial. The conviction was affirmed,
“finding all points of error to be without merit.”
His second appeal was on Oct. 21,1997, seven days before his
scheduled execution date. Ransom filed motions for a stay of
execution and for Certificate of Probable Cause. His application for
CPC and the motion for stay of execution were denied and the appeal
Ransom was executed by lethal
injection at 6 p.m. on Oct. 28, 1997. The inmate didn’t request a
last meal. He made a final statement professing his innocence.
Ransom’s mother, Pearlie Ransom, and his cousin, Jocelyn Gums,
attended the execution from the observation room. There were no
witnesses from the victims' families.
At the time
of his death, Ransom was 34 and had spent 13 years on death row.
Kenneth Ray Ransom
On October 28, 1997, Kenneth
Ray Ransom became the 32nd Inmate in 1997 to be executed in Texas.
was executed by lethal injection for having killed at least one person
in a 1983 botched robbery of an amusement center in Houston that left
four men dead. Insisting on his innocence to the very end, Ken said his
death would be "an instrument to abolishing the death penalty."
He apologized to the victims' families not because he felt guilty, but
"because of the pain all of them are going through each holiday,
each birthday that they're without their loved ones."
As Ken began chanting a Muslim
prayer, his mother, who witnessed the execution from a chamber behind a
glass partition, pleaded with him to contact her if he returned in
another life. "If you can come back, come back and tell me how you
are doing," she said. As her son began to lose consciousness after
being lethally injected Pearlie Ransom collapsed, pleading, "Oh,
Jesus, oh, Jesus."
On the night of the rampage Ken
and two accomplices -- the already executed Richard Wilkerson and James
Randle, who was 16 at the time of the killings and is now serving a life
sentence -- went to the Malibu Grand Prix video arcade and go-cart track
ostensibly to collect Wilkerson's final paycheck and avenge his firing.
The men arrived at the arcade at
closing time packing butcher knives and herded three workers -- 22-year-old
Roddy Harris and brothers Arnold, 19, and Joerene Pequeno, 18 -- into a
bathroom and locked them in the stalls. They then pulled the victims out
one by one and stabbed them repeatedly. A fourth victim, 18-year-old
night manager Anil Varughese, was forced to open a safe containing the
approximately $1,300 taken in the robbery. Varughese was found dead in
the arcade's office, where Wilkerson slashed his throat so violently he
broke the 6-inch blade on his knife.
Kenneth Ray Ransom executed
The Houston Chronicle
Kenneth Ray Ransom, convicted of helping to butcher
four people with a kitchen knife in 1983, used his last breaths Tuesday
to protest his execution.
"First and foremost I want to tell the victims'
families I'm sorry," Ransom said while strapped to the gurney in
Huntsville's Walls Unit, moments before lethal injection. "I'm not
sorry because I feel like I'm guilty, but because of the pain they go
through every holiday, the pain each birthday. ...
"I feel like this is God's will. I feel like I'm
the instrument in hopefully abolishing the death penalty forever."
Ransom, 34, sang a Muslim prayer, smiled at his mother,
Pearlie, and cousin, Jocelyn Gums, and quietly awaited the lethal shot.
As the drugs flowed into his arms, he took a deep breath, his lips
sputtering on the exhale. He was pronounced dead at 6:20 p.m.
Pearlie Ransom became hysterical, collapsed and was
taken from the observation room in a wheelchair, screaming "Oh
There were no witnesses from the victims' families,
but Donnie Trent, mother of victim Roddy Harris, said by telephone it
was time for Ransom to die.
"It's time for it to be over," she said.
"Of course, I'm sorry for his family, too, but I think he got what
he deserved. I see no reason for keeping a murderer in jail all these years, and we have to pay for it."
Ransom was one of three men convicted of murdering
four people at the Malibu Grand Prix amusement center on the Southwest
Freeway July 1, 1983. Harris, Arnold Pequeno, his brother, Joerene, and
Anil Varughese were butchered so badly that investigators weren't sure
if they had been shot as well as stabbed.
Co-defendant Richard Wilkerson had recently been fired
from a job as a Malibu go-cart pit man and returned to rob the
establishment. Ransom, Wilkerson and James Edward Randle made off with
$1,300. Wilkerson's mother tipped police that her son might be involved
in the murders.
Wilkerson was executed Aug. 31, 1993. Randle was 16 at
the time of the incident and could not be sentenced to death. He was
given life imprisonment but is eligible for parole in January 2003.
Ransom's attorney, Jim Marcus, standing vigil outside
the Walls Unit Tuesday, said Randle recently signed a statement that he
did the killing and tried to kill Ransom when he tried to stop the
Based on that and some recently obtained prosecutors'
evidence that Randle was a sociopath, an appeal was filed Friday. But it
was rejected on procedural grounds.
"I feel frustrated, and I don't think anyone
should feel good about this execution because it's a travesty,"
Harris' sister, Wendy Steele, who watched the trial,
doubted Ransom's story and pointed out one of the murder weapons came
from Ransom's girlfriend's apartment. Ransom also had Harris' ring and
driver's license when he turned himself in.
"If he really wanted to stop it he wouldn't have
taken the knife from his girlfriend's apartment or he would have called
the police," Steele said.
Gary L. Johnson, Director, Texas
Department of Criminal Justice,
126 F.3d 716
United States Court of Appeals,
Oct. 21, 1997.
Certiorari Denied Oct. 28, 1997.
Appeal from the United States
District Court for the Southern District of
Before KING, JOLLY and
DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Ransom has been
sentenced to death by the State of Texas for
the murder of Arnold Pequeno. His execution
has been scheduled for October 28, 1997.
and sentence were upheld by the Texas
Criminal Court of Appeals.
Ransom v. State, 789 S.W.2d 572 (Tex.Crim.App.1989).
The United States Supreme Court denied
v. State, 497 U.S. 1010, 110 S.Ct. 3255, 111
L.Ed.2d 765 (1990).
unsuccessful post conviction actions in
Texas state court, Ransom
petitioned the federal district court for a
writ of habeas corpus. The district court
denied habeas relief and subsequently
refused to grant a Certificate of Probable
Cause ("CPC"). Ransom
v. Johnson, No. H-96-0344 (S.D.Tx.1997).
motions for a stay of execution and for CPC
in this court. After considering the briefs,
pertinent parts of the record, and other
materials, we deny the motions for stay of
execution and certificate of probable cause.
was with his girl friend, Wanda Phillips, at
her home for most of the day on June 30,
1983. After seven o'clock p.m., James Randle,
a friend of appellant, came to Phillip's
[sic] home to talk with him. Appellant and
Randle went outside--away from Wanda and her
small daughter. The two talked for about
fifteen minutes. Randle left and appellant
came back into the home. Later, Randle
returned to the home for a second time. The
two went outside again to talk for about
left, but between nine thirty and nine forty-five
p.m., he returned to the home and for a
third time he and appellant went outside to
talk. Both men went into the kitchen after
this third discussion. While there, they
removed a butcher knife from the dish
drainer. Randle told appellant, "Oh man,
here's one that we can use." As they started
to leave with the knife, Phillips asked
appellant where he was going and said that
she needed her knife. Appellant responded
that they were going to pick up Randle's
cousin's paycheck. Randle told her, "Hold on
you're going to get your knife back. We'll
bring the knife back."
nine thirty and ten o'clock p.m. that night,
Randle's mother saw Randle with Richard
James Wilkerson, Randle's cousin, and "another
boy" at her home. Randle's younger brother,
Jessie, saw appellant leave with Randle and
Wilkerson at some time before midnight.
Earlier that day, Randle's mother had
borrowed a butcher knife from one of her
neighbors but was later unable to find it.
approximately ten o'clock that night,
Wilkerson's sister saw appellant standing
outside her home when she unlocked the
screendoor to let her brother inside.
Wilkerson went into the kitchen and rummaged
through the drawer where the family kept the
butcher knives. Randle waited in the kitchen
doorway. After going through the drawer,
Wilkerson went into the bedroom with Randle.
The two went outside five or ten minutes
after they had arrived at the home. When
Wilkerson's sister locked the door behind
them she saw appellant speaking with
Wilkerson and Randle. The three left
Varughese, Rod Harris, Arnold Pequeno and
his younger brother, Joerene Pequeno, were
employees of the Malibu Grand Prix Race
Center in Houston. The race center, which
contained numerous video games inside the
center and had a racetrack for gocarts
outside, was open for business from ten
o'clock a.m. until midnight.
James Wilkerson had also been employed by
the race center but his employment was
terminated on June 20, 1983. Wilkerson could
not pick up his last paycheck until June 30,
1983--the day that appellant told Phillips
that he was going to pick up Randle's
cousin's paycheck. Before Wilkerson could
get the check he had to appear in person at
the race center and sign his time card
indicating that he had received it. As of
two-thirty p.m., on June 30, 1983, Wilkerson
had not picked up his check.
night, at three o'clock a.m. on July 1,
1983, appellant with Randle and Wilkerson
returned to Phillips' home. Wilkerson was
carrying a black satchel. Appellant went
into the bathroom and the other two men went
into the bedroom. All three men had blood on
their clothing. Appellant, while in the
bathroom, tended to a severe cut on the
inside of his right hand.
bedroom, Wilkerson poured the contents of
the black satchel--currency, a wallet, a
calculator and a watch--onto the bed. Some
of the money was bloody. The three men
counted it together after which Randle gave
appellant a share. Phillips estimated
appellant's share to be around three hundred
and twenty-five dollars.
counted the money, put it into his pocket
and began watching television with the two
other men. Wilkerson and Randle talked of
how they had "slashed" somebody's throat and
"put the knife in someone['s] temple."
Phillips, while the men watched television,
began cleaning her kitchen. She discovered
that a billfold, some credit cards and a
driver's license had been discarded in the
garbage, the driver's license had the name "Roddy
Harris" on it. Randle took the billfold, the
credit cards and the license away from
Phillips and threw them into the dumpster.
Phillips asked appellant from where the
money had come, he replied, "We just went
and got some money." Phillips and appellant,
that next day, used the money to purchase
clothing for themselves.
morning, at around eight o'clock a.m., the
bodies of Anil Varughese, Rod Harris,
Joerene Pequeno and Arnold Pequeno were
discovered at the race center by a friend of
Varughese. Anil Varughese's body was
discovered in the manager's office. He had
been stabbed at least eight times--five
times in the chest and three times in the
abdomen. He was eighteen at the time of his
three bodies were found in one of the race
center's bathrooms. Rod Harris' body was
found in one of the stalls. He had been
stabbed at least seven times in the chest.
Joerene Pequeno's body was found in the
other stall. He had been stabbed eleven
times--once in the chest, once in the neck,
once in the back, and once in the right hand;
he had been stabbed seven times in the neck
area with one cut severing his jugular vein.
Pequeno's body was in the bathroom corner
with his head under one of the urinals. He
had been stabbed and cut twenty-two times in
the neck, chest, abdomen, back and right
hand. One of the cuts to his neck severed
his jugular vein. Arnold's watch and class
ring were missing along with a black satchel
in which he carried his school books. At the
time of their deaths, Rod Harris was twenty-two
years old, Arnold Pequeno was nineteen and
his younger brother, Joerene, was eighteen.
victims' blood covered the bathroom floor
and was splattered on the walls and ceiling.
There was blood not matching that of the
victims on the sink's counter, on a paper
towel and on the bathroom door. A trail of
blood led out of the bathroom, through the
race center and into the parking lot area.
Analysis revealed that this blood could not
have come from any of the victims or from
either Randle or Wilkerson. Only appellant's
blood was genetically compatible to it.
fingerprint to appellant's left index finger
was lifted from the door to the bathroom
stall where Harris' body was found. The
print was discovered on the inside of the
door at the top. Randle's fingerprint was
lifted from the inside of the door to the
bathroom stall where Joerene Pequeno's body
thirteen hundred dollars was missing from
the race center's safe and petty cash
drawers. Wilkerson's last paycheck was also
missing. His time card had been signed and
was found laying on the manager's desk.
that was taken from Phillips' home was
discovered in an area near the racetrack.
The knife was broken into pieces.
evening on the day that the bodies were
discovered, appellant was with Phillips. The
two were watching television. A news story
about the murders was broadcast. Upon seeing
the story, appellant was visibly upset. At
around seven o'clock that evening, appellant
told Phillips that he was going to Wharton,
time Phillips saw appellant, he was wearing
a high school class ring and a watch both of
which were identical to the ones that Arnold
Pequeno had been wearing before his murder.
Phillips had never seen appellant wear the
ring or the watch before that day. Also, the
calculator that was in the satchel along
with the satchel itself were identified at
trial as belonging to Arnold Pequeno.
15, 1984, Ransom
was convicted of the capital murder of
Arnold Pequeno and sentenced to death. State
of Texas v. Kenneth
Ransom, No. 384,336
(176th Judicial District Court of Harris
County, Texas, June 15, 1984). Following
unsuccessful appeal and post conviction
actions in Texas state courts,
the United States District Court for the
Southern District of Texas for a stay of
execution and a writ of habeas corpus on
April 22, 1996. The district court granted
the stay. On March 6, 1997, the district
court denied habeas relief in a sixty-page
order, applying the Antiterrorism and
Effective Death Penalty Act ("AEDPA")
v. Johnson, No. H-96-0344 (S.D.Tx.1997).
13, 1997, the Supreme Court issued its
opinion in Lindh v. Murphy, --- U.S. ----,
117 S.Ct. 2059, 138 L.Ed.2d 481 (1997),
holding that the AEDPA does not apply to
cases pending at the time of its effective
date of April 24, 1996. In response to the
Lindh decision, Ransom
moved to alter or amend the district court's
judgment. That motion was denied.
Ransom filed a
notice of appeal and a request for CPC. The
district court denied the CPC and vacated
its stay. Ransom's
execution date of October 28, 1997 was then
set by the state court. On August 21, 1997,
Ransom filed in
this court a motion to stay the execution.
Ransom filed a
motion for CPC on September 26, 1997.
Standard of review
pre-AEDPA standards to this habeas petition
filed prior to the effective date of the
AEDPA for relief from a Texas death sentence.
See Green v. Johnson, 116 F.3d 1115, 1120
(5th Cir.1997)(applying pre-AEDPA standard
to case filed before effective date of act
as Texas had not met opt-in requirements for
of Ransom's claim
may be reviewed only if the court grants a
certificate of probable cause ("CPC"). An
appellate court is without jurisdiction to
address the merits of an appeal from a
district court denial of habeas relief
unless it grants a CPC. James v. Cain, 50
F.3d 1327, 1330 (5th Cir.), cert. denied,
--- U.S. ----, 116 S.Ct. 310, 133 L.Ed.2d
a CPC, Ransom must
"make a substantial showing that he has been
denied a federal right." Barefoot v.
Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383,
3394, 77 L.Ed.2d 1090 (1983).
Ransom must "demonstrate
that the issues are debatable among jurists
of reason; that a court could resolve the
issues [in a different manner]; or that the
questions are adequate to deserve
encouragement to proceed further." Id. at
893 n. 4, 103 S.Ct. at 3394 n. 4; James, 50
F.3d at 1330. The nature of the penalty in a
capital case is a relevant, but not
determinative, factor in deciding whether to
grant a CPC. Rector v. Johnson, 120 F.3d
551, 558 (5th Cir.1997).
will be granted only upon a showing that "there
are substantial grounds upon which relief
might be granted." James, 50 F.3d at 1330.
Ransom advances two
constitutional arguments in this appeal.2
Ransom argues that
he was denied effective assistance of
counsel during the penalty-phase of his
trial because counsel failed to discover and
present mitigating evidence.
Ransom also argues
that his due process rights were violated
when the trial court refused to instruct the
jury on a lesser included offense.
that he received ineffective assistance of
counsel during the penalty phase of his
trial, because counsel failed to conduct a
reasonable investigation into his background
and to present mitigating evidence.
Ransom is entitled
to effective assistance of counsel at all
stages of his criminal trial, including the
sentencing phase. A claim of ineffective
assistance of counsel has two components.
Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a
defendant must show deficient performance of
counsel. A defendant must then show
prejudice resulting from the deficiency.
Failure on either prong defeats the claim.
Tucker v. Johnson, 115 F.3d 276, 280 (5th
Cir.1997)(citing Strickland, 466 U.S. at
697, 104 S.Ct. at 2069-70). A claim of
ineffective assistance of counsel is a mixed
question of law and fact which appellate
courts review de novo. Green, 116 F.3d at
first prong, counsel's performance is
compared to an objective standard of
reasonableness. Strickland, 466 U.S. at
688-90, 104 S.Ct. at 2064-66. Judicial
scrutiny of counsel's performance is highly
deferential to counsel whose performance is
strongly presumed to "fall[ ] within the
wide range of reasonable professional
assistance." Id. at 689, 104 S.Ct. at 2065.
Tactical and strategical decisions of
counsel "if based on informed and reasoned
practical judgment" will not be second-guessed.
McCoy v. Lynaugh, 874 F.2d 954, 964 (5th
Cir.1989)(quoting Mattheson v. King, 751
F.2d 1432, 1441 (5th Cir.1985)[ ] ).
second prong, a defendant must show that
prejudice caused by the deficiency is such
that there is a reasonable probability that
the result of the proceedings would have
been different. Id. at 694, 104 S.Ct. at
2068. The mere possibility of a different
outcome is not sufficient to prevail on the
prejudice prong. Cockrum v. Johnson, 119
F.3d 297, 302 (5th Cir.1997). Rather, the
defendant must show that prejudice rendered
sentencing "fundamentally unfair or
unreliable." Lockhart v. Fretwell, 506 U.S.
364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d
counsel would have discovered his child
welfare case file had counsel mounted a
thorough investigation. The case file would
have provided the defense with a wealth of
information including the following: during
his childhood Ransom
was regularly subjected to physical,
emotional, and possibly sexual abuse at the
hands of his mother and older siblings; he
was shuttled between his mother and a foster
parent; Ransom had
positive traits to which his former foster
mother could have testified.3
Instead, counsel presented no evidence
whatsoever at the punishment hearing.
contends that counsel was on notice that the
case file existed because of his prior
relationship with the family.
Ransom points to
the affidavits of his trial counsel, Wesley
Hocker and Roy Jerue, which were offered by
the state at state post conviction
proceedings. Wesley Hocker was appointed
lead counsel. Because he was the family
attorney, Roy Jerue was appointed to assist
Hocker. Hocker Aff. p 3. Jerue was
responsible for investigations for the
penalty phase. Jerue had known the family
since 1973 and had "either represented [Ransom's
mother] or her children as guardian ad litem
in a proceeding wherein it was alleged that
Pearlie had neglected her children." Jerue
Aff. p 2. Ransom
argues that Jerue's knowledge of the
background was sufficient to put counsel on
notice that Kenneth
was abused as a child.
offered the affidavits of both of
counsel in support of its argument that
counsel was not deficient. The affidavits
show the following in support of the state's
claim. Neither Ransom
nor any other person told Jerue that
Ransom had been
abused as a child. Id. p 6. Jerue conducted
the following investigation for the penalty
phase: (1) traveled to Wharton, Texas to
interview unnamed persons; (2) interviewed
Ms. Ransom; (3)
interviewed one of Ransom's
alone, Jerue's failure to conduct further
investigation for childhood abuse may have
been professionally deficient. Although
failure to present mitigating evidence
during the penalty phase of a capital trial
is not, per se, ineffective assistance of
counsel, see e.g., West v. Johnson, 92 F.3d
1385, 1408 (5th Cir.1996)(collecting cases),
cert. denied, --- U.S. ----, 117 S.Ct. 1847,
137 L.Ed.2d 1050 (1997), counsel has a duty
to make a reasonable investigation of
defendant's case or to make a reasonable
decision that a particular investigation is
unnecessary, Strickland, 466 U.S. at 691,
104 S.Ct. at 2066. The reasonableness of
investigation decisions depends in part on
information supplied by the defendant.
McCoy, 874 F.2d at 964.
argues that Jerue had no reason to suspect
abuse because Ransom
never told Jerue that he was abused. In
determining the reasonableness of decisions
not to investigate, information provided by
the defendant is only one factor,4
but in some cases it may be the controlling
fact, see, e.g., McCoy, 874 F.2d at 964.
When counsel is on notice of potential
mitigating evidence, counsel is no longer
justified in relying exclusively on the
defendant for information. Cf. East v.
Scott, 55 F.3d 996, 1006 (5th Cir.1995)(counsel
not ineffective for failing to investigate
mental history when "nothing ... would have
put his counsel on notice that [defendant]
was mentally ill."); see also West, 92 F.3d
at 1408-09 (counsel not ineffective for
failing to investigate physical/psychological
problems when "given no reason to suspect
anything in that regard"); Andrews v.
Collins, 21 F.3d 612, 623 (5th Cir.1994)("Because
counsel had no reason to believe that
pursuing further investigation into Andrews'
... background would be useful, 'counsel's
failure to pursue those investigations may
not ... be challenged as unreasonable' ")(quoting
Burger v. Kemp, 483 U.S. 776, 795, 107 S.Ct.
3114, 3126, 97 L.Ed.2d 638 (1987)), cert.
denied, 513 U.S. 1114, 115 S.Ct. 908, 130
L.Ed.2d 790 (1995).
Jerue had known the family both socially and
professionally for over two decades. More
importantly, Jerue had represented
Ransom's mother or
the children in proceedings to terminate Ms.
rights. Jerue Aff. p 2. By his own admission,
Jerue knew of "the problem of neglect within
the Ransom family."
Jerue Aff. p 6. It was just such knowledge
of the family that prompted the court to
appoint Jerue as second chair to "act[ ] as
a liaison with Ransom's
family...." Hocker Aff. p 2. Under these
circumstances, even with the benefit of
highly deferential review, Jerue's failure
to investigate, standing alone, may have
fallen " 'below an objective standard of
reasonableness' for professional
performance." East, 55 F.3d at 1006 (quoting
Theriot v. Whitley, 18 F.3d 311, 313 (5th
argues that performance was, nonetheless,
within the realm of professional
reasonableness because lead counsel Hocker
contends that he would not have presented
evidence of abuse, even if he had known of
it, as the defense theory was innocence.
Hocker Aff. p 5. Counsel's decisions to
present no evidence in the penalty phase and
to rely totally on the rather weak
exculpatory evidence rejected by the jury in
the guilt phase is very troublesome.
Nevertheless, we need not decide whether
counsel's performance was deficient, for we
find that counsel's ineffective assistance
did not undermine the outcome and, therefore,
falls under the prejudice prong of
on the prejudice prong of Strickland, there
must be more than the mere possibility of a
different outcome. Cockrum, 119 F.3d at 302.
Ransom must show "evidence
of sufficient quality and force to raise a
reasonable probability that, had it been
presented to the jury, a life sentence would
have resulted." Andrews, 21 F.3d at 624. The
prejudice resulting from counsel's errors
must render sentencing "fundamentally unfair
or unreliable." Lockhart, 506 U.S. at 369,
113 S.Ct. at 844.
conclude that Ransom
has not met this burden. The alleged
mitigating evidence when weighed against the
evidence heard at the guilt phase of the
trial outweighs any prejudice resulting from
errors of counsel. Tucker, 115 F.3d at 280.
The district court accurately catalogued the
following evidence presented at trial:
Joseph Jachimczyk testified that Arnold
Pequeno received twenty-two (22) cuts and
stab wounds to his body. (Statement of Facts--Trial,
at vol. XXII, pp. 492-95). Pequeno suffered
wounds to the upper abdomen penetrating the
liver, to the chest, to the neck severing
the jugular vein, to the back puncturing the
left lung, and to the left hand. The wounds
to Pequeno's left hand were consistent with
defensive wounds as Pequeno attempted to
ward off [the] attack.
at the sentencing the jury heard evidence
that Ransom had
committed burglary and unauthorized use of a
motor vehicle. Michael Anthony Lee also
testified that on June 25, 1983, just days
before the murders, Ransom
stabbed him multiple times on the sides of
his face during an attempted robbery and
threatened, "Don't make me kill you Mike." (Statement
of Facts--Punishment Trial, at vol. XXIV,
Ransom v. Johnson,
No. H-96-0344, at 49 n.30. Balancing this
evidence with the alleged mitigating
evidence, we conclude that
Ransom has failed to carry his burden
of proving sufficient prejudice. See
Hernandez v. Johnson, 108 F.3d 554, 563 (5th
Cir.1997)(holding that the gruesomeness of
the crimes would have outweighed alleged
mitigating evidence); Cockrum, 119 F.3d at
304 (collecting cases rejecting ineffective
assistance claims where alleged failures to
investigate mitigating evidence did not
the case file also contained evidence that,
if disclosed, would have been detrimental to
Ransom's case. See
Cockrum, 119 F.3d at 304 (failure to
investigate mitigating evidence did not
prejudice the defendant because of the
double-edged nature of the evidence); West,
92 F.3d at 1410 (evidence that defendant was
drinking on the evening of the killing is
"at best a two-edged sword"). For example,
the case file contains evidence that
Ransom had been
arrested for shoplifting and was involved in
numerous burglaries and thefts. It also
contained several psychological evaluations
of Ransom which
concluded that he was no longer affected by
his childhood sufferings, he had adjusted
"quite well," and he was of normal
intelligence. See supra, note 3.
reasons we cannot conclude that the case
file contained "evidence of sufficient
quality and force to raise a reasonable
probability that, had it been presented to
the jury, a life sentence would have
resulted." See Andrews, 21 F.3d at 624.
Claim: Due Process, Lesser Included Offense
v. Lynaugh, 838 F.2d 764, 767 (5th Cir.),
cert. denied, 486 U.S. 1061, 108 S.Ct. 2832,
100 L.Ed.2d 932 (1988), this court held that
the Eighth Amendment as made applicable to
the states by the Fourteenth Amendment and
the Due Process clause of the Fourteenth
Amendment require that a jury in a capital
case be allowed to consider convicting the
defendant of a lesser included, noncapital
offense if the jury could rationally acquit
the defendant of the capital crime and
convict the defendant of the noncapital
crime. In Cordova, this court stated:
explained in Hopper v. Evans, 456 U.S. 605,
610, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367
(1982), [Beck v. Alabama, 447 U.S. 625, 100
S.Ct. 2382, 65 L.Ed.2d 392 (1980) ] stands
for the proposition that "the jury [in a
capital case] must be permitted to consider
a verdict of guilt of noncapital offense 'in
every case' in which 'the evidence would
have supported such a verdict.' " Although
Beck, strictly speaking, "holds only that a
state cannot impose a blanket ban on the
giving of lesser-included-offense
instructions in a capital case," Reddix v.
Thigpen, 805 F.2d 506, 511 (5th Cir.1986),
we have consistently held that Beck 's
holding applies when the state trial court
refuses a lesser included offense
instruction. See Reddix, 805 F.2d at 511-12
(applying Beck but finding no violation
because evidence did not support lesser
included offense); Bell v. Watkins, 692 F.2d
999, 1004-05 (5th Cir.1982), cert. denied,
464 U.S. 843, 104 S.Ct. 142, 78 L.Ed.2d 134
in the present case, as in Cordova, is
whether a rational jury, given all the facts,
could have acquitted defendant of capital
murder and convicted him of a lesser
included offense. The defendant,
Ransom, argues that
a rational jury could have acquitted him of
capital murder and convicted him of either
of two lesser included offenses, noncapital
murder or robbery.5
Ransom points to
his testimony and the testimony of his
former girlfriend Wanda Phillips as
providing sufficient evidence to warrant
instruction on a lesser offense. The
following relevant facts were found by the
state court in post conviction proceedings:
the guilt-innocence phase of trial of the
instant case, [Ransom]
testified that on the night of June 30,
1983, co-defendant Randle came to Wanda
Phillips' apartment three times, and [Ransom]
left with Randle after the third time; that
the first time Randle came to the apartment,
[Ransom] and Randle
discussed going to pick up co-defendant
Wilkerson's check; that the second time
Randle came to Phillips' apartment, Randle
requested the return of a pair of jeans;
that the third time Randle came to Phillips,
[Ransom] and Randle
went into the apartment, and Randle picked
up a knife; that [Ransom]
had no knowledge that Randle was taking the
knife from Phillip's [sic] apartment; that
the applicant had no knowledge that anyone
had a knife; and, that [Ransom]
did not know that they were going to do
anything but pick up co-defendant
Wilkerson's check (R. XXIV--518-524, 530).
further testified, during the trial of the
instant case, that [Ransom]
played arcade games at the site of the
instant offense, Malibu Grand Prix, for
about twenty minutes, and then [Ransom]
went to the restroom; that [Ransom]
saw Randle stabbing a man in the restroom;
that [Ransom] tried
to prevent the stabbing; that [Ransom]
then left Malibu Grand Prix and hid in a
ditch; and, that the only reason that [Ransom]
took the proceeds from the robbery was
was scared (R. XXIV--529, 542, 550-51).
Court finds, based on a review of [Ransom]'s
testimony during the trial of the instant
case, that [Ransom]
denied committing any action or having the
requisite culpable mental state for the
the guilt-innocence phase of the instant
trial, witness Wanda Phillips testified that
she was with [Ransom]
on the evening of June 30, 1983; that co-defendant
Randle came to her apartment three times on
June 30, 1983; that [Ransom]
went outdoors with Randle on all three
occasions; that Randle came into the
apartment with [Ransom]
on the third occasion; that [Ransom]
and Randle went into the kitchen and while
there someone picked up a knife and Randle
said "Oh, man, here's one we can use;" and,
that [Ransom] and
Randle then left, and [Ransom]
assured Phillips that she would get her
knife back (R. XXIII--342-345, 347-349,
Witness Wanda Phillips further testified,
during the trial of the instant case, that [Ransom]
was accompanied by co-defendant Randle,
Randle's younger brother, and co-defendant
Wilkerson when [Ransom]
returned to Phillips' apartment, and that [Ransom]
told Phillips, when Phillips went into the
bathroom where the applicant was tending to
his hand, that he was cut when the other guy
tried to grab the knife. Phillips later
contradicted her testimony and said that [Ransom]
told her that he was cut when he tried to
keep Randle from stabbing someone (R. XXIII--359,
29,820-01 at pp. 1032-34.
argument that the jury rationally could have
found that Ransom
intentionally or knowingly caused the death
of Arnold Pequeno but was not involved in
the robbery is totally without merit. The
testimony of Ransom
and Phillips that tended to exculpate
Ransom from any
crime whatsoever provided a rational basis
for the jury to return a verdict of not
guilty, and the jury was instructed that a
not guilty verdict was permissible. However,
the evidence would not have supported a
rational finding that
Ransom killed Arnold Pequeno outside
the scope of the robbery or for any reason
other than to further the robbery.
Nor do we
believe that a rational juror, after
considering all of the evidence, could have
convicted Ransom of
the robbery while exonerating him of all of
the murders. All of the inculpatory evidence
consistently tends to prove that he was an
active and equal participant in planning,
preparing for, committing, and dividing the
fruits of the robbery and the murders.
exculpatory evidence, however, consisting of
and one version presented by Phillips'
testimony, indicates that
Ransom was implicated in neither
offense but went to the crime scene merely
to play video games. A second version of
Phillips' testimony tends to show that
Ransom brandished a
knife in confronting one of the victims
immediately prior to the killings. The
evidence provides no basis for a reasonable
inference that Ransom
participated in a robbery or attempted
robbery but withdrew or somehow
disassociated himself from the murders.6
Accordingly, we conclude that in this
particular case the jury could have reached
but one of two reasonable conclusions, viz.,
that Ransom was
guilty of capital murder or of no crime at
all. Because the facts of the case would not
have supported a middle view the trial court
did not commit constitutional error in
refusing to instruct the jury that it could
entertain and return a lesser included,
noncapital offense verdict.
foregoing reasons the application for
certificate of probable cause and the motion
for stay of execution are DENIED and the
appeal is DISMISSED.
: A plain reading of Beck
and Hopper inexorably leads to the same
conclusion. If due process is violated
because a jury cannot consider a lesser
included offense that the "evidence would
have supported," Beck, 447 U.S. at 627, 100
S.Ct. at 2384, the source of that refusal,
whether by operation of state law or refusal
by the state trial court judge, is
We adopt verbatim the
statement of the facts by the Texas Court of
Criminal Appeals in Ransom
v. State of Texas, 789 S.W.2d 572 (Tex.Crim.App.1989).
State court findings of fact are presumed
correct as provided in 28 U.S.C. § 2254.
Ransom does not, in
the motions before us, challenge the Texas
Court of Criminal Appeals's findings of fact,
and they do not "otherwise appear" to fall
under any of the circumstances enumerated in
section 2254(d)(1)-(8). Accordingly, these
facts are presumed correct. 28 U.S.C. §
The state trial court in
post conviction proceedings found that the
case file contained the following:
born on April 15, 1963, was one of six boys
who lived with their mother; that initially
all of the children were in foster care, and
all except a Kenneth
home; that, on May 18, 1973, many V-shaped
marks were found on the back, both flanks,
and the arm of a Kenneth
Ransom, and a
Ransom was placed
in the James Dorsey foster home; that a
report dated May 21, 1973, notes that it was
Ransom [who] had
been burned severely with hot water, that a
Ransom had a
thickened keloid in the right pubic region
and a dark pigmented burn area on his foot,
that both arms and thighs are covered with
old and new scars from extension cord licks,
and that a Kenneth
Ransom had a
scarred face; that, on June 7, 1973,
temporary custody of a
was granted to the Harris County Child
Welfare Unit due to alleged physical abuse
and neglect by his biological mother; that,
on February 14, 1975, a
was removed from the Dorsey foster home and
returned to his own home after his mother
received counseling and expressed interest
in having Kenneth
Ransom returned to
her home; that, on May 9, 1975, an
elementary school principal and school nurse
reported that a Kenneth
Ransom had come to
school with bruises and cuts on his back and
arm, and a Kenneth
Ransom told the
elementary school principal and school nurse
that his mother had whipped him; that, on
May 12, 1975, a Kenneth
Ransom was again
placed in the James Dorsey foster home; that,
on June 17, 1975, temporary managing
conservatorship of a
was awarded to the Harris County Child
Welfare Unit; that, on July 16, 1975, Harris
County Child Welfare was granted permanent
managing conservatorship and the parental
rights of a Pearlie Mae
Ransom were terminated; that a
Ransom had made As
and Bs in school; that, in October, 1975, a
shoplifting; that, in August of 1976, a
Ransom was arrested
for shoplifting; that in September of 1976,
Ransom was again
arrested for shoplifting; that, on January
22, 1978, a Kenneth
Ransom ran away
from the Dorsey foster home; that, on
February 14, 1979, a
returned to the Dorsey foster home; that, a
report dated March 21, 1978, notes that
school reports indicate that a
Ransom "is very
intelligent with great learning potentials,
but he wants to study whatever he pleases
instead of the class assignments;" that, on
July 12, 179, a Kenneth
Ransom was placed
in the Chimney Rock Center; that, on August
24, 1979, a Kenneth
Ransom was placed
with his maternal aunt, Earline Parlaine, in
Wharton, Texas; that in November, 1979, a
Ransom left his
maternal aunt's house to live with his
girlfriend; and, that a
began having problems with the police in
1980 and was involved in several burglaries
and thefts. The [county] records, include a
report, dated January 21, 1981, noting that
Ransom was a
"bright kid with the potential for success"
and that it was a "shame" that a
Ransom had ruined
In Strickland, the
Supreme Court instructed as follows:
The reasonableness of
counsel's actions may be determined or
substantially influenced by the defendant's
own statements or actions. Counsel's actions
are usually based, quite properly, on
informed strategic choices made by the
defendant and on information supplied by the
defendant. In particular, what investigation
decisions are reasonable depends critically
on such information.
466 U.S. at 691, 104 S.Ct.
was indicted for, and convicted of, capital
murder in that he murdered Arnold Pequeno in
the course of robbing him. The applicable
Texas statute provides, in pertinent part,
that a person commits capital murder if he
commits murder in the course of committing
or attempting to commit robbery. TEX. PENAL
CODE § 19.03. Murder occurs when a person
intentionally or knowingly causes the death
of an individual. TEX. PENAL CODE § 19.02
testified that he committed no crime
whatsoever. He said that he innocently went
to the Malibu Grand Prix with Wilkerson and
Randle to play video games, accidently
discovered that Randle had fatally stabbed
two arcade employees in the restroom,
received his hand wound in a futile attempt
to disarm Randle before he dispatched a
third victim, fled to hide in a ditch
momentarily, but, in fear of his life,
rejoined his companions after their murders
and robbery, accompanied them to Phillips'
house, and accepted a share of their ill-gotten
One line of Phillips'
testimony was consistent with
Ransom's story. In
that version, she said that
Ransom told her
that he did not join in the crimes and was
cut when he tried to take a knife away from
Randle, and that Randle and Wilkerson said
that Ransom had not
participated in any of the crimes. If the
jury had adopted this interpretation of the
evidence, however, it reasonably could not
have convicted Ransom
of either capital murder or robbery.
On the other hand, the
record contains little, if any, evidence
that tends to prove the theory that
in the robbery but not the homicides. To
reach such a conclusion, the jury would have
had to reject almost entirely
and the part of Phillips' testimony
consistent with it. Even if the jury had
given great weight to Phillips' repeated
statements that Randle and Wilkerson claimed
exclusive credit for all of the crimes,
State Trial Court Record vol. XXI at 408-09,
410, 435-36, 445, 448-49, 456, this evidence
alone would not have justified
of robbery, although it would have supported
his complete acquittal. The alternate line
of Phillips' testimony, in which she said
that Ransom stated
that he was cut when Randle took the knife
away from him while he was struggling with
one of the victims, tends to prove
Ransom's guilt of
both murder and robbery and not one without
There is no evidence in
the record that reasonably supports an
inference that, if Ransom
was not completely innocent, his conduct and
mental state was distinguishable from that
of his companions, so that he could have
been found guilty of robbery, but not of
murder. Accordingly, the evidence of record
does not afford any basis for a rational
inference or finding that
Ransom joined the criminal
transaction with the intent only to rob and
never formed an intent to cause death to
another. Consequently, we conclude that no
rational juror could have concluded that
robbery without also being implicated in the
murders committed in the course of the