Edwin Turner v. Christopher Epps, Commissioner

412 F. App'x 696
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 17, 2011
Docket10-70018
StatusUnpublished
Cited by11 cases

This text of 412 F. App'x 696 (Edwin Turner v. Christopher Epps, Commissioner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edwin Turner v. Christopher Epps, Commissioner, 412 F. App'x 696 (5th Cir. 2011).

Opinion

PER CURIAM: *

Edwin Hart Turner (“Petitioner”) seeks a Certificate of Appealability (“COA”) on his claim that he received ineffective assistance of counsel during the mitigation phase of his capital case. In the alternative, Petitioner requests that we remand to the district court for an evidentiary hearing on his claim. After review, we find that Petitioner has not made a substantial showing of the denial of a constitutional right and, therefore, we deny his COA on this ground. Petitioner is also not entitled to a COA on his claim that the district court abused its discretion in choosing not to hold an evidentiary hearing.

I. Facts and Procedural History

On December 12, 1995, Petitioner and another individual, Paul Stewart, were drinking beer and smoking marijuana while driving around in Stewart’s car. Eventually, Petitioner and Stewart decided to rob convenience stores in Carroll County, Mississippi. They first drove to Mims Truck Stop, but left after finding it too crowded. They then drove to Mims Turkey Village Truck Stop, about four miles away. At around 2:00 a.m. on December 13th, the two entered the store wearing masks and carrying rifles. Petitioner shot the store clerk in the chest. Petitioner and Stewart then tried to open the cash register, and at one point, both men shot at the register. After their unsuccessful attempts to open the register, Petitioner placed the barrel of his rifle inches from the store clerk’s head and shot him.

Petitioner and Stewart then drove back to Mims Truck Stop. While Stewart went inside the store, Petitioner approached Everett Curry, who was pumping gas outside. Petitioner ordered Curry to the ground, robbed him, and shot him in the head. Meanwhile, inside the store, Stewart grabbed some of the store’s cash. Petitioner then came into the store and pointed his gun at the people inside. Stewart testified at trial that he told Petitioner there was no need to kill anyone else because Stewart already had the money from the cash register. The pair left the store and returned to Petitioner’s home. *699 The next morning, police officers arrived at Petitioner’s home and found the two guns used in the crimes inside. They also found the hockey mask Stewart used during the robberies in the backseat of Petitioner’s car.

After the two were arrested, Stewart gave a full confession and pleaded guilty to two counts of capital murder. As part of his plea, Stewart agreed to testify against Petitioner. The jury ultimately found Petitioner guilty of two counts of capital murder while engaged in an armed robbery and imposed the death penalty. The convictions and death sentence were affirmed on direct appeal. Turner v. State, 732 So.2d 937 (Miss.1999), cert. denied, Turner v. Mississippi, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319 (1999).

Petitioner then filed for post-conviction relief in Mississippi state court. In support of his habeas petition, Petitioner submitted numerous affidavits from family members, as well as an affidavit from Petitioner’s girlfriend at the time of the crimes. Petitioner claimed that these affidavits showed his trial counsel’s lack of sufficient investigation and presentation of mitigation evidence during the sentencing phase of the trial. Petitioner also provided the state court with an affidavit from a doctor offering a different assessment of Petitioner’s mental illnesses from that offered by the expert witness called by the defense during the mitigation phase. The Mississippi Supreme Court denied the ha-beas petition, finding that: Petitioner had not shown a deficiency in counsel’s pretrial investigation or performance; the information provided in the affidavits was cumulative of testimony given at trial; and counsel’s decision not to call additional mitigation witnesses was a strategic choice within counsel’s range of discretion. Turner v. State, 953 So.2d 1063 (Miss.2007).

Petitioner subsequently filed for habeas relief in federal district court on numerous grounds. The district court denied the petition, finding that Petitioner did not rebut the Mississippi Supreme Court’s factual findings by clear and convincing evidence and Petitioner had not shown that the Mississippi Supreme Court’s application of the Strickland standard was unreasonable. 1 In the same memorandum opinion and order, the district court also denied Petitioner’s request for an eviden-tiary hearing and his request for a COA. After the district court denied Petitioner’s motion to alter or amend judgment, Petitioner timely appealed to this court, seeking a COA on his claim of ineffective assistance of counsel. In the alternative, Petitioner seeks a remand for an eviden-tiary hearing.

II. Standard of Review

A. COA and AEDPA Requirements

The habeas petition in this case is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a petitioner must obtain a COA before he can appeal a district court’s denial of requested habeas relief. 28 U.S.C. § 2253(c)(1); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). A COA will not issue unless the petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Such a showing is made if a petitioner demonstrates that “the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir.2007) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 *700 L.Ed.2d 1090 (1983) (internal citation and quotations omitted)). A claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that the petitioner will not prevail. Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When determining whether to grant a COA, we do not fully consider the underlying factual and legal bases in support of the petitioner’s claim. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029; Sonnier v. Quarterman, 476 F.3d 349, 355-56 (5th Cir.2007). Rather, we conduct only a limited, threshold inquiry into the underlying merits. Sonnier, 476 F.3d at 356. In capital cases, we resolve doubts over whether a COA should issue in the petitioner’s favor. Id.

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Bluebook (online)
412 F. App'x 696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwin-turner-v-christopher-epps-commissioner-ca5-2011.