Robert Wallace WEST
Number of victims: 1
Date of murder:
Date of arrest:
Date of birth:
Victim profile: Deanna Klaus, 22
Method of murder: Strangulation
Location: Harris County, Texas, USA
by lethal injection in Texas on July 29, 1997
Date of Execution:
would like to apologize for all of the pain and suffering I
put you all through. I hope this will give you closure now
and later on down the line.
Bob, I appreciate you coming – Stacey and Jess.
I will wait for you –
Age: 35 (20)
Executed: July 29, 1997
Education level: High school graduate or GED
Deanna Klaus, a 22-year-old waitress, lived one
floor below West at a daily-rate motel in the Memorial area. West,
believing Klaus was involved in the recent death of a friend, bound
and beat her with a club on Aug. 24, 1982.
He, too, apologized just prior to his execution.
But Klaus' mother said afterward, "I don't accept his apology. He's
lying. Why did it take 15 years? I resent it when somebody gets all
92 F.3d 1385
WEST, Jr., Petitioner-Appellant,
Gary L. JOHNSON, Director, Texas Department of Criminal
Justice, Institutional Division, Respondent-Appellee.
United States Court of Appeals,
Aug. 19, 1996.
Appeal from the United States
District Court for the Southern District of Texas.
Before POLITZ, Chief Judge,
GARWOOD and JONES, Circuit Judges.
GARWOOD, Circuit Judge:
Robert Wallace West, Jr. (West)
appeals the district court's denial of his petition under 28
U.S.C. § 2254 challenging his February 1983 Texas conviction and
death sentence for the August 1982 intentional murder of Deanna
Klaus while in the course of committing or attempting to commit
burglary of her motel room, contrary to Texas Penal Code §
19.03(a)(2). We previously granted a certificate of probable
cause. We now affirm.
West's conviction and sentence
were affirmed on direct appeal by the Texas Court of Criminal
Appeals, West v. State, 720 S.W.2d 511 (Tex.Crim.App.1986) (en
banc), and the United States Supreme Court denied certiorari.
West v. Texas, 481 U.S. 1072, 107 S.Ct. 2470, 95 L.Ed.2d 878
(1987). West, represented by new counsel, filed state habeas
The state trial court, the
same judge who had presided at West's 1983 trial, on August 25,
1987, entered findings and conclusions, based on the record and
affidavits of West's trial and direct appeal counsel, and
recommended that the Court of Criminal Appeals deny all relief.
The latter court on August 31, 1987, denied relief in a written
order not stating reasons. West, through the same counsel who
represented him in the state habeas proceedings, instituted the
instant section 2254 proceedings in the district court below.
Several months after West's
counsel filed his amended petition,
the state filed its answer and motion for summary judgment. West
never replied to the motion and some ten weeks after it was
filed the magistrate judge issued a memorandum opinion
recommending that the state's motion be granted. After being
granted several extensions, West filed an unverified "response
to magistrate's memorandum and recommendation."
On review of the record, the
magistrate judge's memorandum, and West's response, the district
court entered an order accepting the magistrate judge's
memorandum and recommendation, granting the state's motion for
summary judgment, and dismissing the petition. West filed a
timely notice of appeal.
The state's evidence showed
that the victim, Deanna Klaus, lived alone in room 312 at the
Memorial Park Motel in Houston, Texas, and worked as a waitress
at the motel's restaurant.
Shortly after midnight on
August 24, 1982, Vickie Stolz and two other residents of the
motel were sitting in the motel's breezeway and heard a
commotion emanating from motel room 312. A fourth companion
shortly joined these three.
A few minutes later, West was
observed exiting room 312; he walked within four to six feet of
Stolz and her companions, then turned and walked up a flight of
the motel's stairs; the blue jeans he was wearing appeared to be
soaked with blood.
Stolz and her companions then looked into room 312, which was in
total disarray, and observed the nude body of Deanna Klaus,
bloody and bound, lying face down on the bed.
Police officers arrived on the
scene shortly thereafter, and one of the witnesses directed them
to room 447 in the motel on the floor above room 312. Room 447
was occupied by West and a male transvestite companion, Gonzalo
The police asked both to step
outside, and West was arrested when he did so. Tagle advised
that the room was his and gave permission to search. The police
observed a pair of wet, bloodstained blue jeans lying over a
chair in the room. Stolz and her companions identified West as
the individual they had observed leaving room 312.
Police officers promptly
examined room 312. Detective Lott testified that based on his
examination of the door to room 312, in his opinion it had been
forced open. Officer Richardson testified that the door "was
separated from the seams as if broken into." There was other
There was police officer
testimony that room 312 "was ransacked," there was "stuff
scattered around the floor" and "drawers have been pulled out,
dumped on the floor." Other testimony concerning the room was
that there were "items on the floor" and it appeared "like
somebody went through everything."
The pathologist testified that
Klaus' wrists and ankles were bound by cloth so tightly as to
leave visible pressure grooves on her; her mouth and nose were
gagged with a towel tied by a cloth binding that likewise left
pressure grooves. Her head was covered by a bloody sheet tied by
a leather belt wrapped twice around her neck. There was a stab
wound in her neck and two on her left arm. A six-inch piece of
wood protruded two inches from her back, being stuck four inches
into her body. There was evidence of strangulation by hand,
reflected by her broken hyoid bone. Death resulted from
asphyxiation, caused by the belt and cloth ligatures around the
neck and mouth as well as by manual strangulation, in
combination with the wound from the stick penetrating four
inches into her chest cavity.
West, following repeated
warnings as called for by Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966), gave a full written
confession to the police in which he admitted killing Klaus. He
said he forced his way into her room, pushing the door open with
his shoulder. He disrobed Klaus, tied her up, and gagged her and
put a belt around her neck. He thereafter beat her in the face
with a "club" he found in the room; it broke, and he stabbed her
with it. He hit her with a bottle, which broke, and then "gigged
her in the neck with it." Then, "[w]hen I got up she was still
making noises, she was still alive. I knew that since I went
that far that I couldn't leave her like that. I grabbed the
sheet and wrapped it around her neck and I strangled her. I
pulled it until she didn't move anymore."
West further stated that he
took a gold necklace that he saw in her room, and when he
returned to room 447 put the necklace in Tagle's purse. West
said that when he left room 312 "the door was hard to open
because of when I had broke in" and "[t]here were two dudes and
a girl outside when I came out and went to my room" and "I had
blood all over me."
At the punishment stage of the
trial, previously redacted portions of West's confession were
admitted in evidence. This portion of the confession reflected
that West and Tagle--a "drag queen" female impersonator who used
the first name Roxanne--had begun living together in Houston in
April 1982. Roxanne had a job, and Roxanne and West "also made
money by hustling tricks in the Montrose area of town."
One evening in May they went
to the Montrose area "to make money any way we could." Roxanne
attracted a "trick"--whom West stated later turned out to be one
William Longfellow whom West understood worked as a security
guard--and West asked Roxanne "if she wanted me to roll him and
she said yes." West and Roxanne devised a plan whereby
Longfellow would give West, as well as Roxanne, a ride home in
Longfellow's car and "I would do the rolling."
In the Montrose area, in front
of the Chicken Coop Bar there, Longfellow, at the requests of
Roxanne and West, agreed to give West a ride to his apartment,
and all three got in the front seat of Longfellow's red Mercury
Zephyr and drove to the general vicinity of the apartments on
Sage Street where Roxanne and West lived. Then Longfellow, at
Roxanne's request, stopped and let Roxanne out to urinate, and
Longfellow followed her. West followed both of them. As they
walked back to the car, West was behind Longfellow. West's
confession goes on to state:
"... I pulled out my knife and
grabbed him by his hair and lifted him up off the ground and I
stabbed him in the jugler vain [sic]. I stabbed him about six or
seven times. As I was stabbing him I asked him where his money
was. He told me that his money was in the trunk of his car.
After he told me where his money was at I hit his head up
against a tree and left him for dead. He wasn't moving and he
wasn't saying anything and there was a lot of blood and I had
blood all over my hands. I thought he was dead.
As soon as I grabbed the guy and started
stabbing him, Roxanne ran from there and ran to the apartments.
The apartments are about two blocks away. After I stabbed him I
got into his car and drove back to the apartments on Sage. I
parked the car behind the WINDSOR PLAZA SHOPPING CENTER. I
opened the trunk of the car and I found the guys money in a
brown paper bag. I got the money and went to the apartment....
I thought I had killed the guy so the next
morning we checked the newspapers to see if there was a story
about him being found. We never seen nothing about the man being
found. After a few weeks we just forgot about it. A couple of
weeks later ROXANNE called me from the jail and she told me that
she had been busted for prostitution. I went to the police
station and found out that there was a hold on her for the
stabbing. That's when I found out that the man wasn't dead....
Roxanne was in jail for about two weeks and
she tried to call me several times but I was never there....
When Roxanne got out she told me that she had given Brett's name
as her lover and the police let her go....
A couple of weeks after Roxanne got out of
jail we drove to McALLEN, TEXAS to her fathers ranch...."
This portion of the confession
also reflects that West and Tagle had returned to Houston and
checked into the Memorial Park Motel on August 21.
William Longfellow, a private
security officer, testified at the punishment phase. His
testimony related the May 15, 1982, brutal attack on him by West
described in West's confession, including taking Roxanne (Tagle)
and West in his red Mercury Zephyr from the Chicken Coop Bar to
an area near Sage Street, all three in the front seat, where
they stopped so Roxanne could urinate, and West coming up behind
Longfellow and knocking him down, slashing his throat with a
knife several times.
Longfellow told West his money
was in a paper sack in the trunk of his car. West hit
Longfellow's head several times against a tree stump, wound a
roll of white cloth or gauze around his head and mouth several
times, and held his head under water in a ditch. He took
Longfellow's car keys and driver's license and other
identification papers. After West and Tagle left, Longfellow
managed to get help. He was taken to a hospital, underwent five
and a half hours of surgery, and remained hospitalized for eight
The state also introduced
documentary evidence of West's 1981 Florida conviction for
felony grand theft.
West introduced no evidence at
the guilt-innocence or punishment stages of the trial. The main
thrust of the defense, at trial and on direct appeal, was to
attack the admissibility of West's confession, as being the
result of a warrantless arrest that was illegal under article
14.04 of the Texas Code of Criminal Procedure,
and as having been taken in violation of his Miranda rights and
his rights under the Fifth and Fourteenth Amendments and
analogous provisions of Texas law.
The state trial court held a
Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908
(1964), hearing out of the jury's presence on the admissibility
of the confession and found it admissible, and also instructed
the jury not to consider the confession if it were not found to
have been given freely and voluntarily after proper warnings.
We turn now to the issues
raised by West on this appeal.
I. Sufficiency of the
Evidence and Related Ineffective Assistance of Counsel
West contends that the
evidence is insufficient to support his capital murder
conviction. His argument is that his confession as to the theft
of the necklace was not corroborated, so accordingly there was
no proof of the underlying felony of burglary that made the
murder in question capital murder under Texas Penal Code §
We reject this contention.
Habeas relief under section
2254 on a claim of insufficient evidence is appropriate only "if
it is found that upon the record evidence adduced at the trial
no rational trier of fact could have found proof of guilt beyond
a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 322-26,
99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979). Even if we were
to accept West's premise that proof of theft was necessary to
establish that the murder was committed "in the course of
committing or attempting to commit ... burglary,"
it is evident to us that, based on all the circumstances taken
together with West's confession, a rational trier of fact could
have found theft proved beyond reasonable doubt. West's
confession was amply corroborated, and there was no evidence the
theft did not occur.
West relies on the "Corpus
Delicti" rule. However, he cites no authority for the
proposition that application of that rule is constitutionally
mandated in a Jackson v. Virginia analysis, particularly as to
an underlying felony in a felony murder or capital murder
any event, this Court, relying on, among other decisions, Smith
v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192
(1954), and Opper v. United States, 348 U.S. 84, 75 S.Ct. 158,
99 L.Ed. 101 (1954), long ago held that "corroborative evidence
need not be sufficient, independent of a confession or admission
of an accused, to establish all elements of a crime allegedly
committed. Indeed, the Government fulfills its duty when it
introduces substantial independent evidence which tends to
establish the trustworthiness of an accused's admissions."
United States v. Seckler, 431 F.2d 642, 643 (5th Cir.1970). See
also id. at 644 n. 2; United States v. Abigando, 439 F.2d 827,
833 (5th Cir.1971) ("a confession can be corroborated by
bolstering parts of it to show trustworthiness. Some elements
can be proved by the confession alone"; footnote omitted);
United States v. Gresham, 585 F.2d 103, 107 (5th Cir.1978) (same).
Here it is plain that West's confession was adequately
corroborated--by evidence aliunde the confession--by bolstering
parts of it to show its trustworthiness, and that the theft "element"
of burglary could be adequately proved by the confession itself.
West contends, at least implicitly, that the corroboration rule
in Texas is otherwise. However, as we held in Schrader v.
Whitley, 904 F.2d 282, 284 (5th Cir.), cert. denied, 498 U.S.
903, 111 S.Ct. 265, 112 L.Ed.2d 221 (1990), "in challenges to
state convictions under 28 U.S.C. § 2254, only Jackson [v.
Virginia] need be satisfied, even if state law would impose a
more demanding standard of proof." Accord Pemberton v. Collins,
991 F.2d 1218, 1227 (5th Cir.1993); Jones v. Butler, 864 F.2d
348, 361 (5th Cir.1988), cert. denied, 490 U.S. 1075, 109 S.Ct.
2090, 104 L.Ed.2d 653 (1989); Llewellyn v. Stynchcombe, 609 F.2d
194, 196 (5th Cir.1980). See also White v. Estelle, 669 F.2d
973, 978-79 (5th Cir.1982).
West also claims ineffective
assistance of counsel on the basis, inter alia, of counsel's
failure to raise the issue of alleged evidential insufficiency
on direct appeal. For this purpose, the applicable state law
standard is relevant. See Summit v. Blackburn, 795 F.2d 1237,
1244-45 (5th Cir.1986).
We accordingly turn to Texas
law. The most relevant authority at the time of West's trial and
appeal was reviewed in Wooldridge v. State, 653 S.W.2d 811 (Tex.Crim.App.1983),
where the Court of Criminal Appeals affirmed a conviction for
capital murder committed in the course of aggravated rape. Apart
from the appellant's confession, there was no evidence that the
victim had been sexually molested, although there was ample
corroboration of other parts of the confession. In rejecting
appellant's corpus delicti argument, the Court of Criminal
"It is well settled that if
there is some evidence corroborative of a confession, the
confession may be used to establish the 'corpus delecti [sic].'
White v. State, 591 S.W.2d 851 (Tex.Cr.App.1979); Thomas v.
State, 108 Tex.Cr.R. 131, 299 S.W. 408 (Tex.Cr.App.1927). In
White, supra, the appellant admitted he participated in murders
which occurred during the course of robbery. No independent
evidence established a robbery had been committed. The Court
held the confession was sufficiently corroborated by
circumstances which coincided with details of the confession.
In Thomas, supra, it was stated:
'A confession is sufficient, if there be such
extrinsic corroborative circumstances as will, taken in
connection with the confession, produce conviction of the
defendant's guilt in the minds of the jury beyond a reasonable
doubt. Such suppletory evidence need not be conclusive in its
character. When a confession is made, and the circumstances
therein related correspond in some points with those proven to
have existed, this may be evidence sufficient to satisfy a jury
in rendering a verdict asserting the guilt of the accused. Full
proof of the body of the crime, the corpus delecti [sic],
independently of the confession is not required by any of the
cases.... [citations omitted].'
299 S.W. at 410.
Viewed in a light most
favorable to the verdict, the evidence is ample to support it."
Id. at 816-817 (emphasis added).
Under Wooldridge and White v.
State, 591 S.W.2d 851 (Tex.Crim.App.1979), it is clear that the
evidence of theft here is sufficient.
Accordingly, the failure to argue the sufficiency of the
evidence in this respect was not prejudicial and did not amount
to constitutionally defective performance by counsel.
Several years after West's
conviction was affirmed, the Court of Criminal Appeals handed
down Gribble v. State, 808 S.W.2d 65 (Tex.Crim.App.1990), cert.
denied, 501 U.S. 1232, 111 S.Ct. 2856, 115 L.Ed.2d 1023 (1991).
The Court held the appellant was properly convicted for capital
murder under § 19.03(a)(2) by murdering the victim in the course
of kidnaping her, and rejected his twelfth point of error
contending that the evidence was insufficient because, apart
from his confession, there was insufficient evidence the victim
had been kidnaped. Id. at 69-74 (the Court held, however, that a
Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256
(1989) error at the punishment stage mandated reversal of the
conviction and sentence, id. at 75-76). There was no majority
opinion. The opinion announcing the result in Gribble was
written by Judge Teague and concurred in by two other judges.
Although Judge Teague's
Gribble opinion states that "evidence independent of appellant's
confession was required to show that his victim had been
kidnaped", id. at 71 (emphasis omitted), it goes on to say that
"[s]o long as there is some evidence which renders the corpus
delicti more probable than it would be without the evidence, we
believe that the essential purposes of the rule have been served",
id. at 72 [citing Wooldridge and White ], and "the evidence
required for corroboration of an extrajudicial confession need
only render the corpus delicti more probable than it would be
without the evidence", id. at 73 (emphasis omitted). For this
limited purpose, "circumstances ... ambiguous in some respects
and far from adequate to support the conclusions they imply"
provided the requisite corroboration. Id.
These aspects of Judge
Teague's Gribble opinion were confirmed in Emery v. State, 881
S.W.2d 702 (Tex.Crim.App.1994), where the court sustained a
conviction for capital murder committed in the course of a
burglary, rejecting the contention that there was insufficient
evidence aliunde the appellant's confession to show there had
been a burglary. In Emery there was "no sign of a forced entry
or of anything missing from the apartment" the victim shared
with a roommate and where her body, with its multiple stab
wounds, was found. Id. at 704. In support of its affirmance,
Emery noted that evidence aliunde the confession "need not be
sufficient by itself to prove the [predicate] offense; it need
only be 'some evidence which renders the corpus delicti more
probable than it would be without the evidence.' " Id. at 705 (quoting
Under this Gribble- Emery test
there is sufficient corroboration here: the evidence of forced
entry in the middle of the night into a single woman's room
which was then ransacked, with drawers pulled out and dumped on
the floor, appearing as if somebody went through everything,
certainly makes theft more probable than it would be without
Since the Gribble- Emery test
was met in respect to theft, counsel's failure to argue
insufficiency of the evidence on appeal was neither defective
performance nor prejudicial. But, even were the evidence
insufficient in this respect under Gribble- Emery, we could not
find that failure to raise that issue constituted defective
performance, given that the evidence was clearly sufficient
under the then current Texas case law exemplified by White v.
State and Wooldridge.
Counsel was not bound to
foresee Gribble, much less Emery. Counsel is not obligated to
urge on appeal every nonfrivolous issue that might be raised (not
even those requested by defendant). Jones v. Barnes, 463 U.S.
745, 751-55, 103 S.Ct. 3308, 3313-14, 77 L.Ed.2d 987 (1983);
Smith v. Murray, 477 U.S. 527, 535-37, 106 S.Ct. 2661, 2667, 91
L.Ed.2d 434 (1986); Mayo v. Lynaugh, 882 F.2d 134, 139 (5th
Cir.1989), modified on other gr'ds, 893 F.2d 683 (5th Cir.1990);
Wicker v. McCotter, 783 F.2d 487, 497 (5th Cir.), cert. denied,
478 U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986). Nor is
counsel obligated to anticipate changes in state appellate court
rulings. Smith v. Murray, 477 U.S. at 535-37, 106 S.Ct. at 2667.
Review of the record and of counsel's Court of Criminal Appeals
brief demonstrate a sound grasp of the case and reflect wholly
competent and adequate representation.
Our discussion of the
sufficiency of the evidence--and of the related ineffective
assistance of appellate counsel claim--has thus far proceeded on
the arguendo assumption that proof of theft was necessary for
proof of burglary and hence for capital murder. Actually, that
is not so. Under section 30.02 of the Texas Penal Code burglary
includes nonconsensual entry of a habitation either "with intent
to commit a felony or theft," or if the accused after such entry
"commits or attempts to commit a felony or theft" (emphasis
added). See note 8, supra.
Here, not only theft, but
attempted theft and also entry with intent to commit theft,
would have been burglary. Moreover, burglary would be made out
by murder after the nonconsensual entry, as indisputably
occurred here. The indictment here charged that West did "while
in the course of committing and attempting to commit burglary of
a habitation owned by DEANN KLAUS, intentionally cause the death
of DEANN KLAUS" by hitting, stabbing and strangling her.
The jury instructions here
likewise allowed a finding of burglary on any of the theories
authorized by section 30.02, including the commission of murder
after unlawful entry into the room.
The Texas Court of Criminal Appeals has several times upheld
capital murder convictions on the basis of a burglary where the
burglary was established by the murder of the victim following
unlawful entry into his or her habitation. Fearance v. State,
771 S.W.2d 486, 492-494 (Tex.Crim.App.1988), cert. denied, 492
U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611 (1989); Beathard v.
State, 767 S.W.2d 423, 427 & n. 6, 431 (Tex.Crim.App.1989) (under
general burglary allegation); Matamoros v. State, 901 S.W.2d
470, 473, 474 (Tex.Crim.App.1995) (under general burglary
The evidence here is plainly
sufficient to show burglary by West's forced entry into the
victim's room followed by his murder of her therein.
Accordingly, for this reason also, West's claim of insufficiency
of the evidence and his related claim of ineffective assistance
of counsel for failure to argue otherwise are both without merit.
II. Brady and Related Ineffective
Assistance of Counsel
West argues that the
prosecution suppressed evidence that his confession that he
stole a necklace from Klaus' room was fabricated and thus
violated his rights under Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963). Relatedly, West argues,
though in only the most conclusory manner, that counsel "failed
to undertake reasonable investigation at guilt-innocence and to
present evidence indicating that Mr. West was not guilty of the
underlying felony of burglary." The only thing in the record
even arguably supporting these claims are the conclusory
allegations of West's federal and state habeas petitions.
We reject these contentions.
Brady proscribes "the
suppression by the prosecution of evidence favorable to an
accused." Id. at 87, 83 S.Ct. at 1196. Certainly West knew
whether or not he had taken the necklace, and necessarily knew
that better than the prosecution could have. As we said in
Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir.1994): "Brady
claims involve 'the discovery, after trial of information which
had been known to the prosecution but unknown to the defense.'
United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397,
49 L.Ed.2d 342 (1976)." And, in Lawrence we also quoted with
approval the following passage from United States v. Zackson, 6
F.3d 911, 918 (2d Cir.1993): "Evidence is not 'suppressed' if
the defendant either knew, or should have known, of the
essential facts permitting him to take advantage of any
exculpatory evidence." Lawrence at 257 (citation and internal
quotation marks omitted). See also, e.g., Williams v. Scott, 35
F.3d 159, 163 (5th Cir.1994), cert. denied, --- U.S. ----, 115
S.Ct. 959, 130 L.Ed.2d 901 (1995) ("A Brady violation does not
arise if the defendant, using reasonable diligence, could have
obtained the information"); Blackmon v. Scott, 22 F.3d 560,
564-65 (5th Cir.), cert. denied, 513 U.S. 1060, 115 S.Ct. 671,
130 L.Ed.2d 604 (1994) ("The state is not required to furnish a
defendant with exculpatory evidence that is fully available to
the defendant or that could be obtained through reasonable
diligence"); Duff-Smith v. Collins, 973 F.2d 1175, 1181 (5th
Cir.1992), cert. denied, 507 U.S. 1056, 113 S.Ct. 1958, 123 L.Ed.2d
661 (1993); May v. Collins, 904 F.2d 228, 231 (5th Cir.1990),
cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789
(1991); United States v. Marrero, 904 F.2d 251, 261 (5th
Cir.1990), cert. denied, 498 U.S. 1000, 111 S.Ct. 561, 112 L.Ed.2d
567 (1990). Moreover, West cites no authority, and we have found
none, supporting the conclusion that a Brady violation could be
found in these circumstances. Accordingly, West would have to
extend Brady beyond what is compelled by existing precedent, and
relief is hence barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989).
Moreover, as the magistrate
judge correctly observed in recommending that the state's
unopposed motion for summary judgment be granted, "[t]here is no
evidence that the prosecution had any evidence relating to the
fact that a burglary [by theft] never occurred."
The allegations of West's amended section 2254 petition are
wholly conclusory in this respect and do not assert that West
ever informed (or even suggested to) anyone that he did not take
the necklace. See note 19, supra. Such allegations do not
suffice to entitle West to an evidentiary hearing. "The [habeas]
petitioner must set forth specific allegations of fact, not mere
conclusory allegations," Johnson v. Scott, 68 F.3d 106, 112 (5th
Cir.1995), and "[t]he court need not blindly accept speculative
and inconcrete claims as the basis upon which to order a hearing,"
Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert. denied,
493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 384 (1989) (internal
quotation marks omitted). "Conclusory allegations are not enough
to warrant discovery under Rule 6 of the Federal Rules Governing
Section 2254 Petitions; the petitioner must set forth specific
allegations of fact; Rule 6, which permits the district court to
order discovery on good cause shown, does not authorize fishing
expeditions." Ward v. Whitley, 21 F.3d 1355, 1367 (5th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1257, 131 L.Ed.2d
West's claim of ineffective
assistance of counsel in this respect fails for similar reasons.
It, too, is wholly conclusory. West's confession states that he
took the necklace, and he has never alleged that he ever
informed his counsel that he had not done so, or ever gave
counsel any reason to so believe (nor does West's petition
allege any facts that would have put counsel on notice under
these circumstances, or specify any particular evidence that
investigation in this respect would have revealed).
There is simply no basis on
which to conclude that counsel's performance was
constitutionally deficient in this respect. "We must strongly
presume that trial counsel rendered adequate assistance and that
the challenged conduct was the product of reasoned trial
strategy," Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th
Cir.1992), cert. denied, 509 U.S. 921, 113 S.Ct. 3035, 125 L.Ed.2d
722 (1993), and "[w]hen a defendant has given counsel reason to
believe that pursuing certain investigations would be fruitless
... counsel's failure to pursue those investigations may not
later be challenged as unreasonable." Id. (quoting Burger v.
Kemp, 483 U.S. 776, 795, 107 S.Ct. 3114, 3126, 97 L.Ed.2d 638
(1987) [quoting Strickland v. Washington, 466 U.S. 668, 691, 104
S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984) ]; internal quotation
marks omitted). West's petition simply does not allege facts
showing that counsel's performance in this respect was
Finally, we note that neither
the Brady claim concerning the theft
nor the related ineffective assistance of counsel claim
demonstrate the requisite " 'reasonable probability' of a
different result" such as " 'undermines confidence in the result'
" under Kyles v. Whitley, 514 U.S. 419, ----, 115 S.Ct. 1555,
1566, 131 L.Ed.2d 490 (1995), and Strickland v. Washington, 466
U.S. 668, 693-94, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).
The entire claimed importance of the necklace theft is based on
the theory that without it there could be no burglary and hence
no capital murder. As demonstrated above, this is simply not so.
It is uncontested and beyond dispute that West forced his way
into Klaus' motel room where Klaus lived and then and there
murdered her. This constitutes burglary and establishes West's
guilt of capital murder.
We reject the Brady claim and
related claim of ineffective assistance of counsel.
III. Admissibility of Confession
West argues that the admission
in evidence of his written confession violated his rights under
the Fifth Amendment in that his Miranda right to cut off
questioning was not scrupulously honored, relying on Charles v.
Smith, 894 F.2d 718 (5th Cir.1990).
The evidence shows that when
West was arrested and placed in a patrol car at the motel
Officer Rogers read him his Miranda rights.
He did not appear to be intoxicated or on drugs. After being
read his rights West told Officer Rogers that "he already knew
his rights anyway". West was thereafter taken to the police
station about 3:30 A.M. and was there interviewed by detective
Kent after Kent had again read West his Miranda rights.
West advised Kent that he
understood those rights. West did not appear intoxicated or
under the influence of drugs. West talked to Kent about 30 to 45
minutes, and gave no indication that he wished to exercise or
invoke any of the rights read to him, nor did he discuss those
rights. Kent made no promises or threats to West, and there was
no coercion. At the end of this interview Kent took West to the
jail to be booked in.
Kent talked to West again from
about 9:20 to 10:40 A.M. Kent testified that West was "coherent,"
"in control of his faculties," and "seemed calm, was responsive
to my questions and talked freely." Kent testified that no
promises or threats were made and there was no coercion. West
did not indicate he wished to invoke any of the rights
previously read to him. He was taken back to the jail about
About noon that day murder
charges were filed. Slightly over thirteen hours later, at about
11:50 P.M. that night, West was again questioned by Kent. Kent
read West his rights, and told him he had been charged with
murder and could get the death penalty. During the questioning
Kent informed West that Tagle had implicated him by saying West
had returned to their motel room with his clothes bloody and
then washed them off. West responded that "he didn't believe
Tagle would say that" and said he wanted to talk with Tagle.
Officer Rogers was sent to get Tagle, who Kent mistakenly
thought was at the police station.
About an hour later Rogers
returned without Tagle. Kent at that time, approximately 1:00
A.M. August 25, decided to terminate the interview with West and
take him back to the jail, which had called advising they wanted
West back so he could be transferred to the county. Kent so
advised West. Up until that time, West in all discussions with
Kent had denied any involvement in the murder. Kent testified "I
was getting ready to put him in jail. He decided to start
telling me the story." West was not intoxicated, he "was alert,"
and he "talked freely" and was "responsive to" questions. West
never stated he did not want to talk and never asked for a
lawyer or otherwise sought to invoke his Miranda rights. No
threats or promises were made, and there was no coercion.
After telling his story, West
indicated that he would make a written statement. Kent then
again read West the warnings printed on a statement form (identical
to those on West's written statement, see note 27, infra ) and
again asked him if he understood them and if he wanted to make a
written statement. West said he understood his rights and would
give a written statement. Kent then proceeded to type on the
statement form what West told him. Kent would from time to time
ask questions and type what West said in response.
The statement is seven pages
long, Kent was a slow typist, and several coffee breaks were
taken. The entire process took several hours. When the statement
was finished, Kent handed it to West who read it, the first
sentence aloud, and made several corrections. West then read
silently the printed warnings, said he understood them, and
He then signed each page of the statement. The entire process
was completed at about 7:45 A.M., and West was then returned to
Summarizing his three separate
interviews with West, detective Kent testified there were never
any promises or threats made to West, nor any coercion applied.
He further testified that on each of these three occasions West
had never sought to exercise or raise a question about any of
the rights he had been read. Kent also testified: "He never once
at all stated that he didn't want to talk to me" or "that he
wanted a lawyer," and "he continued to talk with me. He would
answer my questions. He would talk freely with me."
West did not testify at the
Jackson v. Denno hearing, and no evidence was presented
contradicting the testimony of the police officers called by the
The trial court entered
detailed written findings that the confession was in all
respects voluntary and properly warned. The court found, inter
alia, that the warnings as testified to were given West, that he
never advised the officers that he wanted an attorney present,
that "at no time ... did the defendant request police officers
to cease interrogating him," that "defendant, after repeated
warnings, knowingly, intelligently and voluntarily waived his
rights under Article 38.22, V.A.C.C.P., including his right to
assistance of counsel,"
and that "the defendant's confession was not the product of
force, threats, persuasion, intimidation or promises, but was
freely and voluntarily given." On direct appeal, the Court of
Criminal Appeals rejected challenges to the confession, holding
that the trial court's "findings of fact are supported by the
record" and "we find ample support for the finding that
appellant never requested the interrogation cease." West, 720
S.W.2d at 518.
Where the question presented
in a section 2254 proceeding is whether a confession admitted at
trial was voluntary and in compliance with Miranda, with respect
to issues of underlying or historic facts, the state court
findings, if fairly supported in the record, are conclusive, but
there is independent federal determination of the ultimate
question whether, under the totality of the circumstances, the
challenged confession was obtained in a manner compatible with
the requirements of the Constitution. Miller v. Fenton, 474 U.S.
104, 110-14, 116-18, 106 S.Ct. 445, 450-51, 453, 88 L.Ed.2d 405
West challenges the finding of
the state courts that he never invoked his right to remain
silent, relying on the testimony of detective St. John that
between 9:00 and 10:00 A.M. on August 24 West told the officers
he "didn't want to tell us anything about it." This testimony is
best understood, however, as saying not that West refused to
talk or exercised his right to silence, but rather that, denying
any involvement in the murder, he refused to talk about what he
would only know if he were involved.
This construction is
consistent with St. John's testimony that during this interview
West was "very arrogant in that interview. He was denying his
involvement in the episode" and that West never indicated in his
presence any desire to invoke the rights of which he had been
advised. Moreover, Kent was doing the interviewing, and St. John
was in and out of the room. Kent likewise testified that at this
interview he discussed the case with West and West "still denied
having anything to do with it," but "was responsive to my
questions and talked freely." And, as noted, Kent testified that
West did not invoke his rights at this meeting, or any other,
never said he did not want to talk with Kent, and always "would
talk freely with me." The construction West now seeks to place
on St. John's testimony would make it contradictory to that of
Kent. The record fairly supports the underlying factual
determination of the Texas courts that West did not invoke his
right to silence.
Even if West had invoked his
right to silence at the 9:20-10:00 A.M. interview, this would
not render his resumed questioning more than thirteen hours
later a failure to scrupulously honor his right to silence. In
Charles v. Smith, supra, the resumed questioning took place "just
a few minutes after" the defendant had exercised his right to
silence. Id. at 726. Similarly, we found a Miranda violation
where questioning was resumed thirty or forty-five minutes after
invocation of the right to silence. United States v. Hernandez,
574 F.2d 1362 (5th Cir.1978). Here, questioning was not resumed
until after a lapse of thirteen hours. Thus, the present case is
controlled by Kelly v. Lynaugh, 862 F.2d 1126 (5th Cir.1988),
cert. denied, 492 U.S. 925, 109 S.Ct. 3263, 106 L.Ed.2d 608
(1984), likewise a capital case in which we affirmed a summary
judgment denial of habeas relief.
There, Kelly, about 11:00 A.M.
the day of his arrest, having been advised of his Miranda rights,
was asked if he wanted to talk, and he responded "no," and was
taken to the jail. About 4:00 P.M. the same day, he was taken
out of the jail and given his Miranda warnings, but he again
refused to answer questions, and was returned to the jail. He
was yet again removed from the jail for questioning some four
and a half to six hours later (at some time between 8:30 and
10:00 P.M. the same day), and then, after being shown a co-defendant's
statement and "without new Miranda warnings, Kelly orally
confessed. When the confession was reduced to writing [and
signed by Kelly], the Miranda warnings were stated at the top of
the first page" and were followed by a statement that the signer
had read, understood, and voluntarily waived those rights. Kelly
Reviewing Michigan v. Mosley,
423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), and other
relevant authorities, we held that the written confession was
admissible, that Miranda had been complied with, and "Kelly's
right to cut off questioning was scrupulously honored." Kelly at
1130-31. Our thorough examination of the record here leads to
the same conclusion.
We reject West's contentions to the contrary.
We likewise reject West's
claim that the confession was taken in violation of his Sixth
Amendment right to counsel. Although West's Sixth Amendment
rights attached when charges were filed, West had never
requested (or retained) counsel and none had been appointed for
him. In those circumstances, his waiver of counsel pursuant to
his Miranda warnings waived his Sixth Amendment right not to be
interrogated or give a statement without the presence or
guidance of counsel.
This is made clear by
Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d
261 (1989), and its progeny. See United States v. Gaytan, 74
F.3d 545, 555 (5th Cir.1996) ("As long as the defendant is given
Miranda warnings, his voluntary decision to answer questions
without invoking the right to counsel constitutes waiver [of the
Sixth Amendment right]"); Wilcher v. Hargett, 978 F.2d 872, 876
(5th Cir.1992); Montoya v. Collins, 955 F.2d 279, 282 (5th
Cir.), cert. denied, 506 U.S. 1036, 113 S.Ct. 820, 121 L.Ed.2d
692 (1992) ("As long as the police administer Miranda warnings
before proceeding, a defendant's voluntary decision to answer
questions without claiming his right to have a lawyer present to
advise him constitutes a 'knowing and intelligent,' and
therefore valid, waiver of his Sixth Amendment right"; citing
Finally, West complains of
violation of his rights under Tex.Code.Crim.Proc. art. 15.17,
requiring that a person arrested be taken before a magistrate "without
unnecessary delay." However, asserted violations of state law do
not constitute a basis for federal habeas relief. West's written
confession was completed approximately thirty hours after his
arrest, and there is no showing that he was not taken before a
magistrate well before the forty-eight hour presumptive maximum
delay of County of Riverside v. McLaughlin, 500 U.S. 44, 111
S.Ct. 1661, 114 L.Ed.2d 49 (1991).
"Even assuming that the time gap between arrest and initial
appearance was unreasonable, the claim does not rise to
constitutional significance." De La Rosa v. State of Texas, 743
F.2d 299, 303 (5th Cir.1984), cert. denied, 470 U.S. 1065, 105
S.Ct. 1781, 84 L.Ed.2d 840 (1985). "The rule in McNabb v. United
States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) [which]
prohibits the use in [federal] criminal cases of confessions ...
where there was a failure to bring the accused before a
committing magistrate without unnecessary delay ... has not been
extended to state prosecutions as a requirement of the
Fourteenth Amendment." Smith v. Heard, 315 F.2d 692, 694 (5th
Cir.), cert. denied, 375 U.S. 883, 84 S.Ct. 154, 11 L.Ed.2d 113
(1963), citing Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97
L.Ed. 469 (1953), and Gallegos v. Nebraska, 342 U.S. 55, 72 S.Ct.
141, 96 L.Ed. 86 (1951). "Failure to [timely] take an accused
before a magistrate ... bear[s] only upon the issue of
voluntariness" of the confession, and is only one of several
factors to be considered in that respect. Smith v. Heard at 694
(emphasis added), citing Culombe v. Connecticut, 367 U.S. 568,
81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961).
In De La Rosa, relying on
Culombe; Brown; Gallegos; and Smith v. Heard, we upheld the
admissibility of the confession, despite its having been given
before the arrested accused was taken to a magistrate and
following what we assumed was an unreasonable delay in doing so,
because "[i]n our reading of the record we find nothing to
indicate that De La Rosa's confession was anything other than
the product of his free and voluntary choice." De La Rosa at
review of the entire record here leads to the same conclusion as
to West's confession. Notwithstanding the delay between arrest
and arraignment, under all the circumstances reflected by the
record here, West's confession is shown to be the product of his
free and voluntary choice.
We reject all the contentions
West raised on appeal in respect to the admissibility of his
IV. Penry Claim, and
Challenges to Texas Capital Sentencing Scheme
West argues that his rights
under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d
256 (1989), were violated because under the Texas sentencing
special issues the jury could not give full effect to the
allegedly mitigating circumstances of his case.
Insofar as West relies on allegedly mitigating circumstances not
reflected by evidence introduced or tendered at his trial, his
claim is without merit as we have repeatedly held that a Penry
claim may be based only on evidence introduced or offered at
trial. Briddle v. Scott, 63 F.3d 364, 377 (5th Cir.), cert.
denied, --- U.S. ----, 116 S.Ct. 687, 133 L.Ed.2d 531 (1995);
Anderson v. Collins, 18 F.3d 1208, 1214-15 (5th Cir.1994);
Allridge v. Scott, 41 F.3d 213, 223 (5th Cir.1994), cert. denied,
--- U.S. ----, 115 S.Ct. 1959, 131 L.Ed.2d 851 (1995); Crank v.
Collins, 19 F.3d 172, 176 (5th Cir.), cert. denied, 512 U.S.
1214, 114 S.Ct. 2699, 129 L.Ed.2d 825 (1994); Callins v. Collins,
998 F.2d 269, 275 (5th Cir.1993), cert. denied, 510 U.S. 1141,
114 S.Ct. 1127, 127 L.Ed.2d 435 (1994).
The only evidence actually
introduced (or offered, conditionally or otherwise) at trial
that West claims is mitigating evidence that could not
adequately be taken into account under the sentencing special
issue, consists of statements in his confession that he had been
drinking heavily the afternoon and evening of the murder and
that he "boiled up" or "blew up" at things the victim said to
him after he had forced his way into her room and attacked her.
As to the drinking and
inference of intoxication, we have many times held that this may
be adequately taken into account under both the first and second
punishment issues (deliberateness and future dangerousness).
Briddle at 377; Anderson at 1214-15 n. 5; Nethery v. Collins,
993 F.2d 1154, 1161 (5th Cir.1993), cert. denied, 511 U.S. 1026,
114 S.Ct. 1416, 128 L.Ed.2d 87 (1994); James v. Collins, 987
F.2d 1116, 1121 (5th Cir.1993); Cordova v. Collins, 953 F.2d
167, 170 (5th Cir.), cert. denied, 502 U.S. 1067, 112 S.Ct. 959,
117 L.Ed.2d 125 (1992). See also Lackey v. Scott, 28 F.3d 486,
487 (5th Cir.1994), cert. denied, 513 U.S. 1086, 115 S.Ct. 743,
130 L.Ed.2d 644 (1995). As to West's having "blown up" or the
like, any mitigating quality of this evidence could be
adequately taken into account under both the punishment issues.
Blackmon at 564; Marquez v. Collins 11 F.3d 1241, 1248 (5th
West also makes what appears
to be both an as applied and a facial challenge to the Texas
sentencing scheme on the basis that it chills counsels'
presentation and/or development of mitigating evidence.
We have repeatedly rejected such claims. Briddle at 378; Lackey
at 490; Crank at 176; Black v. Collins, 962 F.2d 394, 407 (5th
Cir.), cert. denied, 504 U.S. 992, 112 S.Ct. 2983, 119 L.Ed.2d
West advances a further facial
challenge to the Texas sentencing scheme on the basis that the
second special issue improperly functions as an aggravating
circumstance and is invalid in the absence of appropriate
narrowing definitions or instructions.
We rejected essentially the same contention in James at 1119-20,
and, more recently, in Woods v. Johnson, 75 F.3d 1017, 1033-34
(5th Cir.1996). See also Nethery at 1162; Thompson v. Lynaugh,
821 F.2d 1054, 1059-60 (5th Cir.), cert. denied, 483 U.S. 1035,
108 S.Ct. 5, 97 L.Ed.2d 794 (1987); Milton v. Procunier, 744
F.2d 1091, 1095-96 (5th Cir.1984), cert. denied, 471 U.S. 1030,
105 S.Ct. 2050, 85 L.Ed.2d 323 (1985). In Jurek v. Texas, 428
U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the facial
validity of the Texas capital sentencing scheme was sustained.
There the Court held that the constitutionally required
narrowing function was performed at the guilt-innocence stage,
and further narrowing at the sentencing stage was not required.
Id. at 268-75, 96 S.Ct. at 2955-57. This was confirmed by
Lowenfield v. Phelps, 484 U.S. 231, 243-47, 108 S.Ct. 546,
554-55, 98 L.Ed.2d 568 (1988). Jurek likewise expressly rejects
the contention that the second punishment issue is impermissibly
vague. Id. at 272-75, 96 S.Ct. at 2957-58. See also Pulley v.
Harris, 465 U.S. 37, 49 n. 10, 104 S.Ct. 871, 879 n. 10, 79 L.Ed.2d
29 (1984) (Texas punishment issues not impermissibly vague).
We reject West's claims based
on Penry, as well as his challenges to the Texas capital
V. Ineffective Assistance
of Counsel at Sentencing
West claims counsel was
ineffective in failing to present mitigating evidence at
sentencing and in failing to adequately investigate in that
West's amended federal
petition alleged in general terms that his counsel was
ineffective because he failed to adequately investigate West's
"social, educational, health, and medical background and failed
to discover facts which, if provided to a psychologist or
psychiatrist, would have rendered relevant and significant
evidence regarding the defendant's responsibility for the crime
as well as his deliberateness and future dangerousness."
It is alleged that West's
mother abandoned him to her parents shortly after his birth, and
his grandparents (described as "very good people" whom West "loved"
and was "close to") raised West, who believed they were his real
parents until he was approximately twelve years old. He did well
in school until he was twelve, and then began having problems,
including alcohol and drug abuse. He suffered a head injury of a
wholly unspecified sort. After his grandfather died when West
was fifteen, West was placed in various juvenile facilities.
Attached to West's amended federal habeas petition was an
affidavit by psychologist Dr. Brown, who examined West in July
1987 and performed three psychological tests on him. Brown also
examined West's school and juvenile facility records, as well as
his records after his conviction at the Texas Department of
This affidavit states that
West's "social, educational and athletic development were
excellent until the age of twelve." Some time thereafter he was
involved in a series of juvenile offenses and was eventually
placed in the Illinois Department of Corrections, where he
remained until age eighteen. He received some psychological
testing there, which reflected an I.Q. of 100.
It was also "regularly noted
that he had anger and hostility within and poor impulse control"
but "seemed typically to respond well to supervision." After
release he "continued his drug use as an adult, primarily using
angel dust, often combining it with alcohol." In Houston, West
and his friends "spent most of their time in bars and on the
streets hustling for their money." Brown reports West "has long
suffered from headaches" which "are getting worse now" so he "now
takes aspirin by the handful"; he "currently suffers from
blurred vision and, on at least one occasion, passed out and
fell without explanation." Brown did not make any diagnosis of
insanity, incompetence, psychosis, or any particular
However, he did opine that "some
type of organic brain syndrome" "may exist," confirmation of
which would require "a complete neurological examination, CAT
scan, and EEG sleep tracing." In support of his "may exist"
opinion, Brown stated that the drugs West had been abusing "when
taken in significant dosages over a period of years, can be
causative to brain tissue pathology" and also referred to West's
"history of headaches, flashbacks, blurred vision, multiple head
injuries ... one episode of passing out without explanation and
... rocking himself prior to sleep."
Brown opined that West's
murder of Klaus Was "a singular event" and it was "highly
unlikely" West would "commit such an offense again." In support
of this opinion, Brown principally stressed West's "history of
drug abuse and excessive consumption of alcohol the day of the
crime"; that the victim was a woman and West, who "experienced
problematic relationships with women" harbored "deep-seated
anger at women"; that "the killing was done out of loyalty to a
friend rather than other criminal behavior like robbery or
burglary"; and that West "did not enter the victim's room with
the idea of killing her, but did so afterwards in an unusual
rage state which was out of character for him."
The affidavit of West's trial
counsel, which is wholly uncontradicted on this record, states
in part as follows:
"On August 22, 1982, Mr. West
was present in the courtroom of the 182nd District Court and Roy
Ashe and I had an opportunity to talk with him. Mr. West
appeared lucid and coherent; he was able to and did respond
appropriately to the questions that we asked.
During the course of our case
preparation, both Roy Ashe [co-counsel] and I visited with Mr.
West on numerous occasions. At no time during the course of the
investigation, trial preparation, or trial itself did Mr. West
give any indication that he was anything other than sane at the
time he committed the offense and competent to stand trial. He
was able to relate details of the offense and justified the
killing on the basis that the victim was at least partially
responsible for his friend Brett getting killed.
Mr. West communicated freely
with Roy Ashe and me during the course of the trial, often
asking pertinent questions or providing additional information.
In the course of my preparation I asked Mr. West whether he had
ever had any psychiatric/psychological problems. While I do not
recall his exact response, I feel certain that his response,
coupled with my personal observations of Mr. West, foreclosed
any potential insanity defense. In my professional opinion I saw
no need to have Mr. West undergo a psychiatric examination.
* * * * * *
In preparation for trial,
including the punishment phase, I had Mr. West prepare a
background summary of his work history and school history.
Unfortunately for the defense, the information provided by Mr.
West was not at all helpful and generally damaging. Neither
conversations with Mr. West nor his summary provided us with
names of people (employers, roommates, schoolmates) who might
testify in his behalf at punishment. I personally contacted the
grandmother who had raised Mr. West. She refused to testify for
him and did not tell me anything that compelled me to subpoena
her in spite of her refusal."
As we have many times held, "[t]he
failure to present a case in mitigation during the sentencing
phase of a capital murder trial is not, per se, ineffective
assistance of counsel." Stringer v. Jackson, 862 F.2d 1108, 1116
(5th Cir.1988), vacated and remanded on other grounds, 503 U.S.
222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), following remand,
979 F.2d 38 (5th Cir.1992) (modifying original opinion in other
respects). See also, e.g., Woods at 1034-35; Andrews v. Collins,
21 F.3d 612, 623-25 (5th Cir.1994); Duff-Smith at 1183; Lincecum
v. Collins, 958 F.2d 1271, 1278-80 (5th Cir.), cert. denied, 506
U.S. 957, 113 S.Ct. 417, 121 L.Ed.2d 340 (1992); Wilkerson at
1065; DeLuna v. Lynaugh, 873 F.2d 757, 758-60 (5th Cir.), cert.
denied, 493 U.S. 900, 110 S.Ct. 259, 107 L.Ed.2d 208 (1989).
West's counsel, from his
observations of and discussions with West, and his inquiry of
him as to whether "he had ever had any psychiatric/psychological
problems," was given no reason to suspect anything significant
in that regard, much less any organic brain syndrome. Nothing in
Dr. Brown's affidavit even suggests otherwise.
There is no allegation--much
less any affidavit or other evidence--that West had ever been
hospitalized for a head injury or for a mental condition or had
ever been diagnosed as having any sort of brain damage or
psychosis, or that West ever gave counsel any reason to believe
that he had ever suffered a head injury or suffered from any
psychiatric or psychological problems. Counsel likewise talked
to West's grandmother, who refused to testify for West and
provided no useful information. West provided no names of
potential witnesses for the punishment hearing, and the
information he did provide "was not at all helpful and generally
damaging." West has not even alleged--much less provided any
affidavit or other evidence of--anything tending to contradict
Accordingly, counsel was not
ineffective for failing to further investigate in these respects.
See, e.g., Andrews at 623 ("Because counsel had no reason to
believe that pursuing further investigation into Andrews' mental
capacity or his 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)); Wilkerson at 1065. See
also Cantu v. Collins, 967 F.2d 1006, 1016 (5th Cir.1992), cert.
denied, 509 U.S. 926, 113 S.Ct. 3045, 125 L.Ed.2d 730 (1993).
Moreover, "[w]e must 'indulge
a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance' and that the 'challenged
action might be considered sound trial strategy.' " Belyeu v.
Scott, 67 F.3d 535, 538 (5th Cir.1995) (emphasis added; quoting
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065), cert. denied,
--- U.S. ----, 116 S.Ct. 1438, 134 L.Ed.2d 559 (1996). See also
Wilkerson at 1065. "The defendant must overcome the presumption
that, under the circumstances, the 'challenged action might be
considered sound trial strategy.' " Strickland, 466 U.S. at 689,
104 S.Ct. at 2065.
In light of the record as a
whole, West has neither alleged nor tendered evidence of
concrete facts sufficient to overcome those presumptions.
Evidence of West's drinking on the afternoon and evening of the
offense was before the jury, and evidence that he customarily
abused alcohol or drugs or had a juvenile record would be--especially
in the pre-Penry setting of this trial--at best a two-edged
Woods at 1034; King v. Lynaugh, 868 F.2d 1400, 1405 (5th Cir.)
(" 'jurors are generally unsympathetic toward drug abusers' "),
cert. denied, 489 U.S. 1099, 109 S.Ct. 1576, 103 L.Ed.2d 942
(1989); DeLuna v. Lynaugh, 873 F.2d 757, 759 (5th Cir.), cert.
denied, 493 U.S. 900, 110 S.Ct. 259, 107 L.Ed.2d 208 (1989).
We observed in Smith v. Black,
904 F.2d 950, 977 (5th Cir.1990), vacated and remanded on other
grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992),
aff'd in relevant part, 970 F.2d 1383 (5th Cir.1992), that
although certain "mitigating evidence might have been presented"
but was not, nevertheless "it is equally possible that Smith's
trial counsel had sound strategic reasons for not presenting it,
and we cannot speculate that Smith was unconstitutionally
impaired by any ineffective assistance on such an allegation."
West has not shown that his
counsel was constitutionally defective.
Moreover, not only has West
failed to show that his counsel's performance was defective, he
has also failed to show the requisite Strickland prejudice. Even
if Dr. Brown had testified as stated in his affidavit, and even
if it were shown that West had a history of drug and alcohol
abuse, and had some character of organic brain syndrome that
diminished his "ability to control his impulses and behavior,"
and even if his grandmother and counselors were to have
testified to his good behavior in grade school (see note 43,
supra ), we are convinced that there is no reasonable
probability--no probability sufficient to undermine our
confidence in the sentencing (or the guilty) verdict--that the
outcome would have been different. Strickland, 466 U.S. at
693-95, 104 S.Ct. at 2068.
West forced his way into the
room of the victim--a woman he barely knew--in the middle of the
night, and admitted that he had gone there with intent to kill
her. He did so in a most brutal and savage manner, but only
after putting her through a horrifying and degrading series of
assaults that must have produced the most exquisite mental
His asserted reason for doing
so--that he believed she had identified Barstow to Longfellow,
resulting in Barstow's death--was most unlikely to favorably
impress any reasonable jury. Among other things, there is
absolutely nothing to suggest that West even believed that Klaus'
asserted identification of Barstow was other than wholly
innocent and without knowledge of the supposed danger to which
it exposed Barstow. Moreover, there is nothing to suggest that
West had any real reason, beyond pure speculation, to believe
that Longfellow killed Barstow or had him killed.
Finally, all this simply makes
matters worse for West as it was he who committed the
premeditated, unprovoked, vicious, and almost fatal stabbing and
robbery of Longfellow. And, it is simply ludicrous to imagine
that a jury considering Klaus' murder would be favorably
inclined to West even if it believed Dr. Brown's theory that he
acted from "deep-seated anger at women." Nor would such a theory,
or Dr. Brown's related theory that West was not otherwise
violent or inclined to criminal violence such as robbery, likely
be given any significance and weight by a jury that heard the
undisputed evidence of West's wholly premeditated and unprovoked
robbery and almost fatal vicious knifing and assault of
This premeditated Longfellow
offense also undermines any theory that West was violent only
because of lack of impulse control. Strickland prejudice is not
shown. See, e.g., Glass v. Blackburn, 791 F.2d 1165, 1170-71
(5th Cir.1986). See also, e.g., Woods at 1035; Andrews at
624-25; Duhamel v. Collins, 955 F.2d 962, 966 (5th Cir.1992);
Wilkerson at 1065.
West asserts he was entitled
to a federal evidentiary hearing. We disagree. " '[I]f the
record is clearly adequate to fairly dispose of the claims of
inadequate representation, further inquiry is unnecessary.' "
DeLuna at 760 (quoting Byrne v. Butler, 845 F.2d 501, 512 (5th
Cir.), cert. denied, 487 U.S. 1242, 108 S.Ct. 2918, 101 L.Ed.2d
949 (1988)). "[N]o hearing is necessary because the state court
record contains adequate, relevant evidence on the factual basis
for an ineffectiveness claim." Lincecum v. Collins, 958 F.2d
1271, 1280 (5th Cir.), cert. denied, 506 U.S. 957, 113 S.Ct.
417, 121 L.Ed.2d 340 (1992). West makes no concrete or specific
factual allegations, much less submits any affidavits or other
evidence, disputing the statements in trial counsel's affidavit
filed in the state habeas proceedings or otherwise tending to
show an entitlement to habeas relief. He was thus not entitled
to an evidentiary hearing. Russell v. Lynaugh, 892 F.2d 1205,
1212-1214 (5th Cir.1989), cert. denied, 501 U.S. 1259, 111 S.Ct.
2909, 115 L.Ed.2d 1073 (1991).
Moreover, the state properly
moved for summary judgment, and the full state record (before
the district court below) prima facie entitled it to judgment,
but West, who had the burden of proof, filed no opposing summary
judgment evidence other than the affidavit of Dr. Brown, which
does not establish either the deficient performance or the
prejudice prong of Strickland. Summary judgment was thus proper.
See, e.g., Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76
(5th Cir.1994) (en banc).
West also argues that the
district court should not have accorded the presumption of
correctness to the state trial habeas court's findings because
the state court did not afford West a "live" evidentiary hearing
but instead relied on affidavits, and because the state trial
court was biased against him. These contentions do not entitle
West to relief. To begin with, the record before the district
court below, wholly apart from the state habeas trial court's
findings and conclusions, failed to demonstrate any genuine
dispute as to any material fact that, if resolved in West's
favor, would entitle him to habeas relief. As noted, the
affidavits of West's counsel are undisputed.
Indeed, West does not even
allege concrete, specific facts that, in light of the state
record (exclusive of the state trial habeas court's findings and
conclusions), dispute such affidavits or otherwise would entitle
West to relief. Any defect in the state trial court's habeas
proceedings is immaterial.
We reject West's contentions
on appeal respecting ineffective assistance of counsel and the
denial of an evidentiary hearing.
For the reasons stated, we
affirm the district court's denial of habeas relief.