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.
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
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
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.
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
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
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,
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
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.
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.
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
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
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
(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
"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
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
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.
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
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,
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, Respondent - Appellee.
UNITED STATES COURT OF APPEALS,
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
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.
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
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
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
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
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
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
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.