UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-50821
SAMUEL CLARK GALLAMORE,
Petitioner-Appellant,
v.
JANIE COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division
Respondent-Appellee,
Appeal from the United States District Court for the Western District of Texas San Antonio Division (5:98-CV-428) October 4, 2001
Before DAVIS, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Samuel Clark Gallamore was convicted of capital murder
for participating in the beating and stabbing deaths of an elderly
couple and their daughter. The Texas courts have rejected
Gallamore’s direct appeals as well as his request for state habeas
relief. The federal district court denied Gallamore’s request for
federal habeas relief, but granted a certificate of appealability.
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Gallamore now raises two challenges to his conviction: (1) the
trial court violated Gallamore’s due process rights as defined by
Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187 (1994), by
failing to inform the jury that Gallamore was ineligible for parole
for thirty-five years; and (2) trial counsel rendered ineffective
assistance. For the reasons that follow, we affirm the judgment of
the district court.
I. BACKGROUND
On March 29, 1992, Gallamore and an accomplice, James
Steiner, drove to the home of Verle Clayton Kenny (“Kenny”) to rob
it. On their way to the robbery, the miscreants agreed to kill
anyone who tried to hinder them.
Three people were present at the Kenny residence on the
night of the robbery: Kenny, who was 83 years old; Julianna Kenny,
who was 74 years old and paralyzed on her left side; and Adrienne
Arnot, Julianna Kenny’s 41 year old daughter.
According to Gallamore’s confessions1, he walked to the
Kennys’ door while Steiner, who was carrying a tire iron and a
cedar branch, hid in the shadows. Arnot answered the door and
Gallamore forced his way into the home. Gallamore grabbed Arnot
and “took her down” while his accomplice rushed in and began
beating Kenny and Arnot with the tire iron and cedar branch.
1 Gallamore made two detailed confessions shortly after his arrest. Transcripts and tape recordings of both confessions were presented to the jury. Gallamore also testified in his own defense at trial and admitted to participating in the robbery.
2 Gallamore then went to the kitchen and obtained a large knife.
Gallamore returned to the front of the house, stabbed Mrs. Kenny,
and then beat her in the head with the cedar branch. Gallamore and
Steiner continued stabbing and beating all three victims until
they were dead. Gallamore took several silver spoons, cash from
Arnot’s purse, and other small items from the home. After his
arrest, Gallamore led law enforcement officers to the location
where he had buried the property taken from the Kenny home.
Gallmore was indicted by a Kerr County, Texas, grand jury
for intentionally and knowingly murdering more than one person
during the same criminal transaction. Venue for Gallamore’s trial
was transferred to Comal County. The guilt-innocence phase of
Gallamore’s trial began on January 27, 1994. On February 1, after
deliberating for less than two hours, the jury found Gallamore
guilty of capital murder.
During the punishment phase of Gallamore’s trial, the
state argued Gallamore’s future dangerousness by presenting the
testimony of three law enforcement officers regarding Gallamore’s
reputation in the community for unlawfulness and violence. The
state also presented Gallamore’s prior criminal history, including
evidence of a prior arrest for assaulting his own sister.
Additionally, the state presented evidence indicating that
Gallamore threatened to escape if convicted. Gallamore’s counsel
offered the testimony of several friends and family members in an
3 attempt to rebut the state’s evidence regarding future
dangerousness. Gallamore’s counsel also offered the testimony of
Dr. Wendell Dickerson, a forensic psychologist, concerning
Gallamore’s mental health and potential future dangerousness.
The jury determined that Gallamore posed a threat of
future violence, that Gallamore had intended to kill the deceased,
and that there were not sufficient mitigating circumstances to
warrant a life sentence. Based on these jury findings, the trial
court sentenced Gallamore to death in accordance with Texas law.
Gallamore appealed his conviction and sentence. The
Texas Court of Criminal Appeals, in an unpublished opinion,
affirmed. Gallamore v. State, No. 71,856 (Tex. Crim. App. 1995).
Gallamore did not petition for certiorari in the United States
Supreme Court. Gallamore’s application for state habeas relief was
rejected by the Texas courts. Ex Parte Gallamore, App. No. 36,958-
01 (Tex. Crim. App. 1998).
Gallamore promptly filed his federal habeas corpus
petition in federal district court. The district court denied
Gallamore’s request for habeas relief in 94-page opinion, but
granted a certificate of appealability (“COA”) on all issues raised
in the habeas petition. Gallamore v. Johnson, No. SA-98-CA-428-EP
(W.D.Tex. 2000). This appeal followed.2
2 The district court granted Gallamore a COA on the four issues raised in his habeas petition, but Gallamore has raised only two of these issues on appeal. Failure to brief the other two issues on appeal constitutes waiver. See, e.g., Lara v. Johnson, 141 F.3d 239, 242 (5th Cir. 1998).
4 II. DISCUSSION
A. Standard of Review
Gallamore’s habeas petition, filed in the district court
after April 24, 1996, is reviewed in accordance with the Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh
v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068 (1997). AEDPA
review of Gallamore’s habeas petition “requires deference to the
state habeas court’s adjudication of [Gallamore’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).” Wheat v. Johnson, 238 F.3d 357, 360
(5th Cir. 2001) (citing 28 U.S.C. § 2254).
B. The Simmons Issue
Gallamore argues that the trial court violated his due
process rights as defined in Simmons v. South Carolina, 512 U.S.
154, 114 S.Ct. 2187 (1994), by refusing to instruct the jury that
Gallamore would not be eligible for parole for thirty-five years if
given a life-sentence.3 Simmons mandates that “where the
defendant’s future dangerousness is at issue, and state law
3 At the time of Gallamore’s trial, a Texas capital murder defendant who received a life sentence was ineligible for parole for at least thirty-five years. See Tex. Code Crim. Proc. Ann. art. 42.18 § 8(b)(2) (Vernon Supp. 1994). Texas law did not provide a life-without-parole alternative to the death penalty.
5 prohibits the defendant’s release on parole, due process requires
that the sentencing jury be informed that the defendant is parole
ineligible.” 512 U.S at 156, 114 S.Ct. at 2190. Gallamore
contends that Simmons applies because “the minimum length of time
the petitioner would be required to serve [if given a life
sentence] far exceeds the commonly held beliefs of the jurors.”
Petitioner’s Brief at 22. Gallamore argues that the trial court’s
failure to offer an instruction relating to parole eligibility
allowed his jurors to employ “misconceived ideas about parole.”
Gallamore offers affidavits of three of the jurors in support of
this argument, and contends that he is entitled to an evidentiary
hearing to demonstrate his jurors’ misunderstanding of Texas parole
law.
Gallamore’s reliance on Simmons is misplaced. “In
Simmons, the Supreme Court expressly held that its ruling does not
apply to Texas, because it does not have a life-without-parole
alternative to capital punishment.” Tigner v. Cockrell, No. 01-
50238, slip op. at 5114 (5th Cir. Aug. 28, 2001) (citing Simmons,
512 U.S. at 168 n. 8, 114 S.Ct. at 2196). A parole-ineligibility
instruction is not required unless the defendant is completely
ineligible for parole under state law. Id. (citing Ramdass v.
Angelone, 530 U.S. 156, 167, 120 S.Ct. 2113, 2120 (2000)). This
court has repeatedly refused to apply Simmons to Texas convictions.
See, e.g., Tigner, slip op. at 5114-15; Wheat, 238 F.3d at 361-62.
6 Therefore, the state habeas court’s rejection of Gallamore’s
Simmons challenge was neither “contrary to, [nor] involved an
unreasonable application of clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).
In his brief, Gallamore concedes that this court has
refused to apply Simmons to Texas convictions. Nevertheless, he
argues that the reasoning of Simmons requires its extension to the
facts of this case. Such an extension would constitute an
impermissible “new” rule of constitutional criminal law barred in
habeas review by the Teague non-retroactivity principle. Tigner,
slip op. at 5115 (citing Teague v. Lane, 489 U.S. 288, 109 S.Ct.
1060 (1989); Wheat, 238 F.3d at 361-62). Therefore, Simmons does
not apply to the facts of this case.4
C. Ineffective Assistance of Counsel
Gallamore next argues that the district court erred by
refusing to grant his request for an evidentiary hearing regarding
his contention that he received ineffective assistance of counsel.
Gallamore claims that his counsel failed to: (1) adequately develop
and present mitigating mental health evidence through the expert
witness; (2) obtain the assistance of co-counsel; and (3) call the
4 Gallamore also argues that he is entitled to an evidentiary hearing to resolve factual issues relating to his Simmons claim. Gallamore is entitled to an “evidentiary hearing to prove his contentions only if we believe that he is entitled to relief if his allegations are proven true.” Moawad v. Anderson, 143 F.3d 942, 947-48 (5th Cir. 1998). Because his Simmons claim is without merit, Gallamore is not entitled to an evidentiary hearing.
7 trial court’s attention to a state court opinion that allegedly
would have entitled defense counsel to question jurors
“extensively” about their knowledge of parole laws.
Under the well-known Strickland test, “[a] habeas
petitioner alleging ineffective assistance must demonstrate both
constitutionally deficient performance by counsel and actual
prejudice as a result of such ineffective assistance.” Carter v.
Johnson, 131 F.3d 452, 463 (5th Cir. 1997) (citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984)).
Establishing deficient performance requires the petitioner to
“prove that the performance of counsel fell below an objective
standard of reasonableness.” Id. The petitioner must show “‘that
counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.’”
Moawad v. Anderson, 143 F.3d 942, 946 (5th Cir. 1998) (quoting
Strickland, 466 U.S. at 668, 104 S.Ct. at 2064). The petitioner
must overcome a strong presumption that the conduct of his trial
counsel falls within a wide range of reasonable professional
assistance. Strickland, 466 U.S. at 687-91, 104 S.Ct. at 2064-66.
To demonstrate prejudice, the petitioner “must establish that the
attorney’s errors were so deficient as to render the verdict
fundamentally unfair or unreliable.” Moawad, 143 F.3d at 946
(citing Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69). When
contesting counsel’s performance during the punishment stage of
8 trial, the petitioner “must establish a ‘reasonable probability’
that the jury would not have imposed the death sentence in the
absence of errors by counsel.” Id. Gallamore is entitled to
habeas relief only if the state court’s “decision rejecting his
ineffective-assistance claim was either ‘contrary to, or involved
an unreasonable application of’ established [Federal] law.”
Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 1512 (2000).
1. Counsel’s Mental Health Strategy
In his first ineffective-assistance challenge, Gallamore
asserts that his attorney failed to properly develop and present
mitigating mental health evidence. Counsel waited until the eve of
trial to secure the assistance of Dr. Dickerson, leaving Dickerson
too little time to examine Gallamore adequately. Moreover, a
“medically trained” expert rather than a psychologist should have
been hired by his attorney to investigate the possibility of
organic brain damage caused by Gallamore’s long history of drug
abuse.
In support of his argument, Gallamore relies in part on
Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985). In Ake, the
Court held that when a defendant demonstrates that “his sanity at
the time of the offense is to be a significant factor at trial, the
State must, at a minimum, assure the defendant access to a
competent psychiatrist who will conduct an appropriate examination
and assist in evaluation, preparation, and presentation of the
9 defense.” Ake, 470 U.S. at 83, 105 S.Ct. at 1096. Gallamore’s due
process right of access to a mental health expert has not been
violated in this case. Dr. Dickerson evaluated Gallamore and
testified on Gallamore’s behalf. Gallamore’s reliance on Ake is
misguided in that Gallamore has not raised a due process challenge.
Rather, Gallamore asserts that his counsel’s performance was
deficient in violation of the Strickland standard. Gallamore, now
unsatisfied with Dr. Dickerson’s testimony, asserts that his trial
counsel should have prepared a better mental health strategy and
put together a more qualified and prepared team of mental health
experts to testify on Gallamore’s behalf.
Gallamore’s arguments regarding the effectiveness of his
mental health expert do not establish ineffective assistance of
counsel. First, most of Gallamore’s arguments hinge on a
comparison of Dr. Dickerson’s testimony with that of the health
expert who testified in the accomplice’s trial. This comparison is
largely irrelevant because Gallamore and his accomplice do not
share identical mental health histories. Moreover, the state court
expressly found that Dr. Dickerson was a competent mental health
expert who had sufficient time to prepare for trial and who
thoroughly and competently testified about mitigating evidence, and
Gallamore’s future dangerousness. In any event, Gallamore’s
ineffective assistance claim should focus on the conduct of counsel
rather than on the effectiveness of a witness. The attorney’s
10 decision to employ Dr. Dickerson rather than the Steiner’s mental
health expert is a decision of trial strategy that “we must presume
. . . [falls] within the ‘wide range of reasonable professional
assistance.’” Moawad, 143 F.3d at 948 (quoting Strickland, 466 U.S.
at 689, 104 S.Ct. at 2065).
This is not a case where Gallamore’s counsel failed to
investigate his client’s mental health or failed to present
relevant mitigating evidence. See, e.g., Lockett v. Anderson, 230
F.3d 695, 716 (5th Cir. 2000) (holding that the failure to conduct
a minimal investigation of a defendant’s possible mitigation
evidence renders counsel’s performance deficient). Gallamore’s
counsel acted reasonably by interviewing family members and
friends, and by employing Dickerson to examine Gallamore.
Dickerson and seven lay witnesses testified as to mitigating
evidence, and the district court correctly observed that an
abundance of testimony relating to Gallamore’s mental health was
presented during the punishment phase of trial. Furthermore, the
state habeas court found that counsel acted reasonably in hiring
Dickerson and offering his testimony at trial. Gallamore has not
cast doubt on the reasonableness of the state court’s conclusion
that his counsel’s performance was constitutionally acceptable.
This prong of Gallamore’s ineffective-assistance argument
also fails because he has failed to established that any prejudice
arose from the allegedly deficient conduct. Gallamore provides
11 little evidence indicating what another mental health expert might
have revealed that would probably have altered the sentence. See
Crane v. Johnson, 178 F.3d 309, 315 (5th Cir. 1999) (the defendant
did not prove prejudice because he “produced no persuasive
psychiatric evidence in the district court that if produced at
trial, would have undermined confidence in the resulting
verdict.”). Gallamore’s key evidence regarding prejudice is the
affidavit of an expert who reviewed Dr. Dickerson’s testimony, but
never personally examined Gallamore. This court has previously
found a similar affidavit unpersuasive. See Dowthitt v. Johnson,
230 F.3d 733, 746 (5th Cir. 2000) (finding an expert affidavit to
be insufficient where it was “based on [the expert’s] review of a
portion of the paper record, and [the expert] did not personally
interview [the defendant].”). The state court’s finding that no
prejudice resulted from the retention of Dr. Dickinson was
reasonable.
2. Appointment of Co-counsel
Gallamore next argues that his attorney offered
ineffective assistance by failing to secure the assistance of co-
counsel. This argument is based on an initial indication to the
trial court by Gallamore’s trial counsel that the appointment of
co-counsel would be useful. Co-counsel was appointed, but only
assisted during voir dire. Gallamore contends that co-counsel
should have been retained for the duration of the trial, and that
12 the absence of co-counsel prejudiced Gallamore because co-counsel
would have adequately prepared an effective mental health expert to
testify on Gallamore’s behalf.
The state habeas court rejected this argument and found
that Gallamore’s counsel had acted reasonably in hiring additional
counsel to assist only in the voir dire process. The state habeas
court also concluded that the absence of co-counsel during the
remainder of the trial did not prejudice Gallamore.
Outside of his conclusory allegations, Gallamore has not
demonstrated how appointment of co-counsel would have altered the
outcome of his trial. There is no constitutional guarantee of the
assistance of two attorneys in a capital case. Counsel’s decision
to retain co-counsel only during voir dire does not constitute
ineffective assistance.
3. Counsel’s Failure to Bring Jackson v. State to the Trial Court’s Attention
Gallamore also complains that his counsel failed to call
the trial court’s attention to Jackson v. State, 822 S.W.2d 18
(Tex. Crim. App. 1991). Jackson, according to Gallamore, permits
counsel to examine jurors “extensively” during voir dire about
their ability to obey an instruction forbidding consideration of
parole. Gallamore contends that Jackson should have been cited
when the trial court stopped defense counsel from questioning a
potential juror further about the juror’s understanding of Texas
13 parole law. Gallamore attempts to establish prejudice by arguing
that if Jackson has been cited to the court and applied, then
counsel would have been able to question more extensively and
strike for cause any venire members who had reservations about
issuing a life sentence for fear of early parole.
Gallamore’s reliance on Jackson is misplaced. Jackson
explains that if a potential juror is “shown to be unable to
disregard parole in determining the punishment issues, he would
have been subject to a challenge for cause.” 822 S.W.2d at 27.
However, Jackson does not stand for the proposition that jurors
must be extensively questioned about their understanding of parole
during voir dire. In fact, on direct appeal of Gallamore’s
conviction, the Texas Court of Criminal Appeals indicated that
“extensive” questioning is inappropriate, explaining that “a voir
dire inquiry which predicates a parole question with a legal
description of the attributes of a life sentence vis a vis parole,
is not a proper query.” Gallamore v. State, No. 71,856 (Tex. Crim.
App. December 13, 1995); see also, Howard v. Texas, 941 S.W.2d 102,
116 (Tex. Crim. App. 1996) (en banc) (holding the same).
Where a petitioner’s argument related to the failure of
counsel to raise a case lacks merit, counsel’s failure to raise the
case is not prejudicial. Neal v. Cain, 141 F.3d 207, 214-15 (5th
Cir. 1998). Even if Gallamore is correct in his assertion that
Jackson should have been raised, defense counsel is not obliged to
14 raise every non-frivolous issue in order to offer effective
assistance. Counsel’s actions during voir dire are viewed as trial
strategy and do not form the basis for an ineffective assistance
claim unless the voir dire strategy is so unreasonable that it
“permeates the entire trial with obvious unfairness.” Teague v.
Scott, 60 F.3d 1167, 1172 (5th Cir. 1995). Counsel’s failure to
raise Jackson does not establish a “reasonable probability of a
different result” that “undermines confidence in the result” of
Gallamore’s trial. West v. Johnson, 92 F.3d 1385, 1400 (5th Cir.
1996). Counsel’s failure to raise Jackson does not establish a
reasonable probability of a different outcome that undermines
confidence in the verdict. The state court’s finding that counsel
did conduct extensive voir dire and its conclusion rejecting
prejudice from the failure to cite Jackson reasonably apply Federal
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court denying federal habeas relief.