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Classification: Murderer
Characteristics: Revenge - Shooting rampage
Number of victims: 3
Date of murder: July 3, 1995
Date of arrest: Same day
Date of birth: May 22, 1944
Victims profile: Edwardo Ochoa (8), Ashley Ochoa (6), and Lacey Anderson (19 months)
Method of murder: Shooting (.45 caliber pistol)
Location: Tarrant County, Texas, USA
Status: Executed by lethal injection in Texas on June 13, 2001



Angela Anderson lived in an apartment with her 3 children: Edwardo Ochoa (8), Ashley Ochoa (6), and Lacey Anderson (19 months).

Wheat was a church maintenance man and lived in the same apartment complex, often babysitting for Angela while she was at work.

On July 30, 1995, Angela delivered a note to Wheat, indicating that she was going to call the police because Ashley had told her that she was molested by Wheat.

Wheat became enraged, went to the apartment and shot Angela, then shot and killed each of the children. Angela survived with brain damage.

Three others, including a security guard and a police officer, were also shot and wounded by Wheat during the rampage.


Wheat v. Texas, 120 S.Ct. 376 (1999) (cert. denied)
Wheat v. Johnson, 238 F.3d 357 (5th Cir. 2001) (Habeas)
Wheat v. Johnson, 121 S.Ct. 2226 (2001) (cert. denied)


Texas Attorney General

AUSTIN - Texas Attorney General John Cornyn offers the following information on John Wheat, who is scheduled to be executed after 6 p.m. on Wednesday, June 13, 2001:

On February 24, 1997, John Wheat was convicted of the July 30, 1995, murder of 19-month-old Lacey Anderson in Fort Worth, Texas.

A summary of the evidence presented at trial follows. Angela Anderson lived in an apartment with her three children, seven-year-old Eddie, six-year-old Ashley, and 19-month-old Lacey. Wheat lived in the same apartment complex.

On the evening of July 29, 1995, Wheat babysat Eddie and Ashley while Anderson was at work. Another neighbor took care of Lacey.

The next morning, Ashley told her mother that the night before Wheat had kissed her on the lips and touched her in the genital area. Angela Anderson wrote a note, which Eddie delivered to Wheat, repeating Ashley's allegation and indicating that she was going to report it to the police.

Immediately after receiving the note, Wheat left his apartment with a loaded .22 pistol, a loaded .45 semiautomatic and extra clips, and went to Angela's apartment.

He started firing the .45 at Angela as she fled upstairs; he also shot security guard Jesse Cranfield, who lived in the apartment above Angela's. Angela fled to another apartment at the far end of the complex.

She had already been shot at least twice by that time, and was trying to hide. Wheat chased her into the apartment and tried to shoot another resident who was blocking the door, but the .45 was out of ammunition.

Wheat entered the apartment and found Angela in the closet of a back bedroom, and shot her twice in the head with the .22 pistol. (Angela sustained multiple gunshot wounds to the head, chest, and thigh. At the time of Wheat's trial, she still had bullet fragments lodged within her brain tissue because it would have been too risky to attempt to remove them.)

Wheat left that apartment, reloading his .45 as he went, and walked back to the apartment where Angela's three children remained. He found them in a back bedroom and shot each of them in the head.

Wheat then returned to his apartment, retrieved a .30 caliber rifle, and started taking potshots at people standing in the common areas of the apartment complex. He shot a police officer who responded to the police dispatch, causing a life-threatening injury.

Shortly after the police arrived, Wheat surrendered his weapons and asked them not to hurt him. The children's bodies were discovered after a neighbor told to police officers at the scene that they were still in the apartment.

Eddie was found kneeling next to a bed, his head lying on the bed in a pool of blood. He had been shot in the head. Police found Ashley in a corner of the same bedroom, curled up and shot in the head.

Lacey, the baby, was found on the floor in a back room of the apartment, also shot in the head. Lacey was still breathing when she was found, but subsequently died after efforts to revive her were unsuccessful. Autopsies revealed that all three children died as a result of gunshot wounds to the forehead.


Wheat was indicted on October 29, 1995, in Tarrant County, Texas, for the capital offense of murdering Lacey Anderson, a child less than six years of age, on or about July 30, 1995.

Wheat was tried before a jury following his plea of not guilty, and on February 24, 1997, the jury found him guilty of the capital offense.

On February 26, 1997, after a jury finding in a separate punishment hearing, Wheat received the death penalty.

Wheat's conviction and sentence were automatically appealed to the Texas Court of Criminal Appeals, which affirmed the trial court's decision on April 21, 1999.

The United States Supreme Court denied hearing the case. The Texas Court of Criminal Appeals denied Wheat's initial state application for writ of habeas corpus on May 26, 1999, and dismissed his supplemental application as an abuse of the writ on June 23, 1999.

On March 21, 2000, after conducting an evidentiary hearing, the United States District Court for the Northern District of Texas, Fort Worth Division, entered judgment denying Wheat's federal petition for writ of habeas corpus.

On January 5, 2001, after hearing oral arguments of the parties, the United States Court of Appeals for the Fifth Circuit denied Wheat's request for a certificate of appealability to allow the appeal to proceed. The United State's Supreme Court denied Wheat's petition for writ of certiorari and application for stay of execution on June 4, 2001.

There was no evidence of prior criminal history presented by the State at the punishment phase of trial.

On July 30, 1995, Lacey Anderson, not quite two years old, was murdered during a shooting rampage in Fort Worth by John Wheat, then a 51-year-old church maintenance man. Also killed were Lacey's 6-year-old sister Ashley Ochoa and her 8-year-old brother Edwardo Ochoa.

Wheat was enraged because the mother of the children had written a note to Wheat that indicated that she was going to call the police because Ashley had told her mother that Wheat had put his hand in her pants.

Wheat argued with the mother and then shot at her as she went upstairs to call the police. He chased her into an apartment and then shot her three times as she hid in a bedroom closet. He then went to her apartment and killed each of her children.

Wheat then got a carbine rifle from his apartment and fired directly into the apartment of the complex's security guard, wounding him in the back and the leg. Another person living in the complex was wounded by shots fired at random by Wheat.

When the police arrived, Wheat fired on them, wounding a female officer before laying down his weapons and surrendering. The children's mother survived her wounds but suffered brain damage. The jury took only 17 minutes to find Wheat guilty and 2 hours to sentence him to death. Prosecutors had rejected a plea bargain for life offered by his attorneys.


Man Executed For Rampage That Killed 3 Children

Amarillo Globe-News

(Associated Press Huntsville) - A former church custodian was executed Wednesday evening for a shooting rampage six years ago in Fort Worth where three children were killed and four other people wounded.

John Wheat was convicted of killing 20-month-old Lacey Anderson in a spree that also claimed the lives of her two older siblings, Eddie Ochoa, 8, and Ashley Ochoa, 6. The three, all shot in the head, were found in their mother's apartment after Wheat surrendered to police closing in on him. Angie Anderson, their mother, was injured. Wheat was pronounced at 6:19 p.m., eight minutes after the lethal dose of drugs began.

"I deeply regret what happened," he said. "I did not intentionally or knowingly harm anyone. I did not do anything deliberately. That's it." Then Wheat uttered a word in Vietnamese, "didimau," which prison officials translated as meaning, "Let's get out of here." He coughed twice, sputtered and gasped before he stopped moving.

Angie Anderson's aunt, Cynthia Bolin, said her niece still had nightmares about the shootings and that Wheat had taken "the only thing that mattered to her." "Mr. Wheat has taken the only joy of her life and left her with severe brain damage for the rest of her life," she said in a written statement. "The execution will not bring closure to Angie, but it may comfort her to know that he is dead and will not kill or harm anyone else." Anderson was not in Huntsville Wednesday night for the execution.

"She will never again be as functional as she once was before the tragedy," Bolin said. "She will remain a victim ... with only partial memories of her three children, all caused by the cruel actions of John L. Wheat."

Five friends and relatives of Wheat watched him die and one remarked in the chamber following his death that the three children now had someone to care for them in heaven. "I think he'll never have a chance to see them in hell," added Angela Jay, the police officer who was shot three times in the spree and was among victim witnesses also in the chamber Wednesday. Asked if she accepted his explanation that the killings were unintentional, Bolin replied: "That's a bunch of bull."

Wheat was the eighth convicted killer executed this year in Texas, where a record 40 executions were carried out last year. The U.S. Supreme Court last week refused to review his case and Wheat's attorneys made no moves seeking clemency. He declined to speak with reporters in the weeks leading up to his punishment.

"It's probably the most horrendous offense I've ever dealt with," said Lisa Mullen, who prosecuted Wheat at his capital murder trial, recalled this week.


Texas Execution Information Center by David Carson

John L. Wheat, 57, was executed by lethal injection on 13 June in Huntsville, Texas for the murder of three children during a shooting rampage.

In July 1995, Angela Anderson asked John Wheat, then 51, who lived in the same apartment complex, to babysit her children while she was at work. She left her 7-year-old son, Edwardo Ochoa, and her 6-year-old daughter, Ashley Ochoa, with Wheat, and her 19-month-old daughter, Lacey Anderson, with another neighbor.

The next morning, Ashley told her mother that Wheat had kissed her on the lips and put his hand down her shorts. Anderson wrote a message to Wheat and gave it to Edwardo to deliver to him. In the note, Anderson wrote what Ashley had told her and that she was going to report him to the police.

Immediately after reading the note, Wheat left his apartment with a loaded .22-caliber pistol, a loaded .45-caliber semiautomatic pistol, and extra clips for the .45, and went to Anderson's apartment.

As Anderson fled upstairs to call the police, Wheat shot at her multiple times with the .45, hitting her at least twice. He also shot security guard Jesse Cranfield, 33, wounding him in the back and leg.

Wheat chased Anderson into an apartment and shot again at least twice with the .22, as she tried to hide in a bedroom closet. He then went into Anderson's apartment, reloading the .45 on the way, and shot each of her children -- Edwardo, Ashley, and Lacey -- in a rear bedroom. After shooting the children, Wheat retrieved a .30-caliber rifle and started firing at random into the apartment complex, wounding tenant Juan Ramirez, 19.

Fort Worth police officer Angela Jay was shot several times in the chest and stomach as she entered the complex. As other officers converged on Wheat, he put down his weapons and surrendered.

Edwardo and Ashley were found dead. Lacey died at the scene. Angela Anderson sustained multiple gunshot wounds to the head, chest, and thigh. She also sustained permanent brain damage.

John Wheat had no prior criminal history. At his trial, his lawyer claimed that he suffered brain damage weeks earlier from inhaling glue fumes while installing insulation. He also claimed that his actions were influenced by his service in Vietnam, although no record of that service was produced.

Wheat was convicted of the murder of Lacey Anderson. Under Texas law, murder of a child less than six year old is a capital offense. A jury sentenced Wheat to death in February 1997, and he was not tried for the other murders.

The Texas Court of Criminal Appeals affirmed the trial court's verdict in April 1999. His other appeals to state and federal court were denied. Wheat did not seek clemency and declined to speak with reporters prior to his execution.

At his execution, Wheat said, "I deeply regret what happened. I did not intentionally or knowingly harm anyone. I did not do anything deliberately." He then uttered a Vietnamese word that prison officials said means, "let's get out of here." He was pronounced dead at 6:19 p.m.


238 F.3d 357

JOHN L. WHEAT, Petitioner - Appellant,
INSTITUTIONAL DIVISION, Respondent - Appellee.

No. 00-10433


January 5, 2001

Appeal from the United States District Court for the Northern District of Texas.

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Texas prisoner John L. Wheat seeks a certificate of appealability to challenge the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Wheat was convicted of capital murder in violation of Tex. Penal Code Ann. § 19.03(a)(8) and sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction on direct appeal. State habeas counsel was appointed, but relief was denied by both the trial court and the Texas Court of Criminal Appeals. Wheat then filed an application for a writ of habeas corpus for relief from the judgment of the state court under § 2254(a).

The district court disposed of all claims and denied this writ, as well as subsequently denying the required certificate of appealability (COA). Wheat now appeals this decision, presenting seven arguments as to why habeas relief is proper. Because these arguments either lack merit or are not properly considered on collateral review, we deny Wheat's motion for a COA.

* John Wheat was a neighbor of Angela Anderson and her three children——seven-year-old Eddie, six-year-old Ashley, and nineteen-month-old Lacey——in the Les Jardins apartment complex in Fort Worth. Angela relied on neighbors in the complex, including Wheat, to babysit her children when she worked night shifts on an assembly line.

On the evening of July 25, 1995, Wheat watched Eddie and Ashley, while another neighbor took care of Lacey. The next morning, Ashley told her mother that Wheat had kissed her on the lips and touched her vagina. Angela reacted by instructing her son to deliver a handwritten note to Wheat that read as follows:

Ashley said you put your hand on her private (in her shorts) part. What the fuck? I will be calling the police! (emphasis in original).

Angela then started upstairs to use a telephone to report the incident to the police. As she left her apartment, Wheat came around the corner and began firing a .45 automatic pistol, chasing her upstairs. Injured, Angela fled into another apartment to rest momentarily.

Wheat entered this apartment's open front door, chased Angela into the rear bedroom, and with a .22 caliber derringer shot her twice in the head, though not fatally. Wheat then reloaded the automatic pistol and returned to Angela's apartment, where he shot to death her three children.

Hearing gunfire, the apartment security officer went outside to investigate. Wheat shot at him, grazing his head. The security officer went back inside the apartment, but Wheat also shot through the door three times, further injuring the officer. Wheat also shot a police officer who responded to the police dispatch, inflicting a life-threatening injury.

Wheat was convicted of capital murder for the killing of the infant, Lacey, and sentenced to death. Wheat offers seven arguments in favor of his motion for a COA: (1) that the Texas death penalty scheme is unconstitutional in that it prevents defendants from offering evidence of parole ineligibility to juries considering the factor of future dangerousness; (2) that the trial court erred by excluding expert testimony that Wheat would probably not live long enough to qualify for release on parole; (3) that the trial court erred by disallowing Wheat to voir dire potential jurors regarding the forty-year parole ineligibility in Texas for life sentences for capital murder; (4) that there was insufficient evidence to support the jury finding of future dangerousness; (5) that the trial court erred by granting the State's challenge for cause to a venire member for his professed aversion to the death penalty; (6) that he was deprived of his right to effective assistance of counsel when his lawyer failed to present a defense of insanity at the guilt-or-innocence phase of his trial; and (7) that the Texas Court of Criminal Appeals erred in state habeas proceedings by refusing to consider a supplement to Wheat's original state writ application that would have brought out an argument of ineffective assistance of counsel.

To obtain a COA, Wheat must make a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). This standard is met if Wheat demonstrates that "'reasonable jurists could debate whether (or, for that matter agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'" Barrientes v. Johnson, 221 F.3d 741, 771 (5th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000)).

Our determination requires deference to the state habeas court's adjudication of Wheat's claims on the merits, unless that adjudication: (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or (2) constituted an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2).


Several of Wheat's claims are procedurally barred. Wheat's arguments of insufficient evidence to prove the probability of future dangerousness, and erroneous granting of the State's for-cause challenge to a venire member were not raised on direct appeal. In his habeas petition, Wheat has made no attempt to argue cause and prejudice for the procedural default, so that the arguments are not properly considered on habeas review. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992).

Wheat's argument regarding the alleged improper exclusion of expert testimony that Wheat would probably not live long enough to qualify for parole is also procedurally barred. Wheat raised this argument on direct appeal, where the court found that the issue was not preserved during Wheat's trial.

The intended offer of proof on the issue at the punishment phase went as follows:

A [by Dr. Mills]: I don't feel I was able to give full meaning to my opinion regarding future dangerousness because of my inability or instructions not to discuss the parole issue. I believe that Mr. Wheat will not live 40 years. His physical health is bad and he has deteriorated over the last year. He is very likely to end up needing a nursing home in the future. And his life expectancy is essentially impossible to reach the age of 90.

Q [by defense counsel]: That's approximately the age, 90 or 93, when Mr. Wheat, if in fact he received a life sentence, would only become eligible for parole.

A: That's correct.

Q: To what degree or percentage can you say for the record was the impact of your testimony reduced by regarding future dangerousness without being able to discuss this factor before the jury?

A: I would say 50 percent.

Mr. Ford: That's our offer of proof, Judge.

The Court: Let me add that I think there are some questions in there that I would permit you to ask him in front of the jury. I don't know exactly what you're seeking to offer.

Mr. Ford: That's okay, Judge. I just wanted that on the record as our offer of proof.

We agree with the Texas Court of Criminal Appeals that the offer of proof was not properly preserved because without clarification by defense counsel it was impossible to determine which testimony the trial court allegedly erroneously excluded. Wheat again makes no attempt on appeal to show either cause or prejudice for this procedural default; he is therefore barred from now bringing the claim on federal habeas review. See, e.g., Sharp v. Johnson, 107 F.3d 282, 285-86 (5th Cir. 1997) (applying the cause and prejudice standard to the failure to preserve an issue).

Finally, Wheat argues that he was deprived of effective assistance of counsel when the Court of Criminal Appeals during state habeas proceedings refused to consider a supplement to his original state writ application.

Wheat contends that this supplement would include an affidavit from Wheat's counsel acknowledging his own ineffective assistance for failing to preserve an issue (related to future dangerousness) for appeal, as well as the Court of Criminal Appeals' criticism of counsel for this failure. The district court ruled that "[t]here is simply no authority to support the proposition that a petitioner has a constitutional right to have untimely submitted materials considered on their merits," citing Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). And as the district court further noted, infirmities in state habeas proceedings are not proper grounds for federal habeas relief. See Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).

Wheat now attempts to circumvent these problems by emphasizing the importance of the supplement to the full development of his ineffective assistance claim, and theorizing that he "cannot be held responsible for any failure to develop any facts under [§ 2254]...since the failure is not his own but rather due to the state habeas court's failure to allow appropriate supplementation of the then-pending writ application."

The trouble with this argument, however, is that the failure was Wheat's: his supplemental application was filed late. Wheat has again made no attempt to argue "cause" for his procedural default on this claim, so that he is barred from bringing these ineffective assistance of counsel arguments on federal habeas review. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2565 (applying the cause and prejudice standard to a late filing of a notice of appeal in state court).


Wheat argues that the Texas death penalty scheme violates the Fifth, Eighth, and Fourteenth Amendments to the extent that it prevents juries from considering the mitigating circumstances that dictate against the imposition of the death penalty. Fifty-three-year-old Wheat argues that the mitigating circumstances in his case are that there is an exceedingly low probability that, given his forty-year parole ineligibility on a life sentence, he would constitute a continuing threat to society. Wheat therefore analogizes his case to Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), where the Supreme Court held that a capital defendant must be given the opportunity to inform the sentencing jury that he is parole ineligible if the prosecution argues future dangerousness.

The district court found that this argument would ask the court to adopt a new rule of constitutional law, so that the claim is Teague-barred, regardless of the merits. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, L.Ed.2d 334 (1989). We agree.

Under Teague, a federal court may not create new constitutional rules of criminal procedure on habeas review. See Teague, 489 U.S. at 301, 109 S.Ct. at 1070; Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999). The treatment of parole eligibility that Wheat seeks would constitute a rule of criminal procedure. See O'Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (characterizing the rule announced in Simmons as a rule of criminal procedure).

Wheat's proposed approach, although he takes pains to point out the similarities between his own situation and that in Simmons, would also constitute a "new" rule under existing Fifth Circuit law. We have repeatedly recognized that the Simmons rule applies only where there is a life-without-possibility-of-parole alternative to the death penalty, an alternative that does not exist in Texas. To hold that a lengthy parole ineligibility is the de facto equivalent of a life sentence without possibility of parole, as Wheat argues, would create a new rule under the law of our Circuit. See Simmons, 512 U.S. at 168 n.8, 114 S.Ct. at 2196 (noting that Texas is unlike South Carolina in that it does not offer a life-without-possibility-of-parole alternative to the death penalty); Miller v. Johnson, 200 F.3d 274, 290 (5th Cir. 2000) (holding that the Simmons rule is not applicable to defendants who would be eligible for parole if sentenced to life); Hughes v. Johnson, 191 F.3d 607, 617 (5th Cir.), cert. denied, ___ U.S. ___, 120 S.Ct. 1003, 145 L.Ed.2d 945 (2000)(same); Muniz v. Johnson, 132 F.3d 214, 224 (5th Cir.), cert. denied, 523 U.S. 1113 (1998) (same); Montoya v. Scott, 65 F.3d 405, 415 (5th Cir. 1995) (same); Allridge v. Scott, 41 F.3d 213, 222 (5th Cir.), cert. denied, 514 U.S. 1108 (1995) (holding that Simmons is only applicable where the state argues future dangerousness and the defendant is legally ineligible for parole); Collier v. State, 959 S.W.2d 621, 623 (Tex. Crim. App.), cert. denied, 525 U.S. 929, 119, S.Ct. 335, 142 L.Ed.2d 276 (1998) (holding that parole considerations do not apply to capital cases because when deciding future dangerousness, juries are free to consider dangerousness to prison as well as free society). Thus, even if Wheat's construction could in the abstract be seen as an extension of the Simmons rule, avoiding the Teague bar, this possibility has been ruled out by this Circuit.


In a related claim, Wheat argues that his Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated when the trial court denied his motion to examine potential jurors regarding the forty-year parole ineligibility for life sentences for capital murder. Wheat asserts that his ability to exercise peremptory challenges, as well as the court's ability to fulfill its obligation to remove prospective jurors, was impaired when he was unable to question jurors regarding parole eligibility.

In King v. Lynaugh, 850 F.2d 1055, 1061 (5th Cir. 1998), however, we held that there is no constitutional right to question venire members on their conceptions and understandings of the Texas parole system and parole eligibility. See also Collier v. State, 959 S.W.2d at 623; Smith v. State, 898 S.W.2d at 846; Boyd v. State, 811 S.W.2d at 118 n.12. Wheat's claims are indistinguishable from the issues addressed in King, so that we cannot grant relief on these grounds.


Wheat next argues that his court-appointed trial counsel violated his Sixth Amendment right to the effective assistance of counsel by failing to present an insanity defense at the guilt-or-innocence phase of the trial. Wheat asserts that if called, the court-appointed psychiatrist would have testified that Wheat was legally insane at the time of the offense. Wheat contends that because the insanity defense was the only viable defense available to him, trial counsel's error rises to the level of a constitutional deprivation.

The district court, following an evidentiary hearing on this issue, rejected the ineffective assistance of counsel claim. We review this decision de novo because ineffective assistance of counsel is a mixed question of law and fact. See Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999). Historical findings of fact, however, are entitled to a presumption of correctness. See id. To prevail in his claim, Wheat must demonstrate (1) deficient performance by counsel that (2) prejudiced his defense such that the outcome of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Wheat cannot meet this standard because, as the district court correctly found, there was no deficient performance by trial counsel, so that the first prong of the Strickland standard is not met.

It is true that there is some evidence that Wheat suffers from a mental deficiency. Specifically, the court-appointed psychiatrist testified in the punishment phase that Wheat was delusional shortly after his arrest, that magnetic resonance imaging of his brain revealed a large empty pocket in the base of his brain, that Wheat suffers from Subcortical White Matter Disease (perhaps caused by workplace exposure to toluene), and that this brain damage was in a region that regulates impulsiveness, aggression, and violence. This psychiatrist, Dr. Mills, asserts that if called during the guilt-or-innocence stage of the trial, he would have testified that Wheat was legally insane at the time of the offense.

Wheat's trial counsel, however, investigated the possibility of an insanity defense and made a tactical choice to reserve the doctor's testimony until the punishment phase. See Williams v. Cain, 125 F.3d 269, 278 (5th Cir. 1997) ("failure to present...evidence would not constitute 'deficient' performance within the meaning of Strickland if...[counsel] could have concluded, for tactical reasons, that attempting to present such evidence would be unwise.").

Even if we were not applying the deferential Strickland standard, we would have to find Wheat's counsel's choice was arguably a sound one. By reserving Dr. Mills' testimony for the punishment phase, Wheat's counsel benefitted from the discovery rules in effect for the trial that did not require disclosure of plans to produce psychiatric testimony in the punishment phase. Counsel thus spared Dr. Mills' testimony the impeachment that would have been likely at the guilt-or-innocence phase.

As trial counsel testified at the district court evidentiary hearing, Dr. Mills himself told them that the insanity defense was not a viable one. The doctor also testified that the opinions he presented at the punishment phase were based primarily on Wheat's own testimony about his delusions, and only secondarily on the brain damage evidence. Wheat's supervisor at work testified in the punishment phase that Wheat's exposure to toluene had been minimal.

Additionally, a licensed psychologist determined that Wheat was competent to stand trial, that his abnormal mental condition did not grossly and demonstrably impair his perception of reality, and that there was no indication of a severe mental illness or emotional disturbance that would preclude his ability to understand right and wrong. If Dr. Mills had testified at the guilt-or-innocence phase, the record indicates that his testimony would have been impeached. We accordingly find no deficient performance; the decision to reserve the insanity evidence as mitigating evidence during the punishment phase was a reasonable tactical choice, well above the Strickland standard.


For the foregoing reasons, Wheat's request for a certificate of appealability is DENIED.



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