IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 90-2142 _____________________
KAVIN WAYNE LINCECUM,
Petitioner-Appellant,
v.
JAMES A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ (April 7, 1992)
Before KING, JOLLY, and JONES, Circuit Judges.
KING, Circuit Judge:
Kavin Wayne Lincecum, a Texas prisoner under a sentence of
death, appeals the dismissal of his petition for a writ of habeas
corpus. Although Lincecum raised 18 claims in the district
court, his appeal involves only three issues: (1) whether the
state trial court erred in refusing to give his requested
instruction on the lesser included offenses of murder and
voluntary manslaughter; (2) whether the district court erred in
denying his motion for an evidentiary hearing on the claims that
(a) his trial counsel rendered constitutionally ineffective
assistance and (b) the Texas death penalty statute is unconstitutional because no rational jury can answer the second
special issue relating to future dangerousness; and (3) whether
the Texas capital sentencing statute was unconstitutionally
applied because the jury had no vehicle through which to consider
his mitigating evidence of a troubled childhood and emotional
difficulties around the time of the crime. Having carefully
considered all three issues, we affirm the denial of habeas
relief.
I. FACTS AND PROCEDURAL HISTORY
Lincecum was convicted of capital murder in a Texas court
for killing Kathy Ann Coppedge during the course of a kidnapping,
robbery and attempted sexual assault. The jury answered the
three special issues in the affirmative and sentenced Lincecum to
death. The facts are fully presented in the opinion of the Texas
Court of Criminal Appeals affirming Lincecum's conviction on
direct appeal, Lincecum v. State, 736 S.W.2d 673 (Tex. Crim. App.
1987), cert. denied, 486 U.S. 1061 (1988). The facts we recite
here are largely taken from the only account of the crime,
Lincecum's confession,1 and are presented only to the extent
necessary for an understanding of the issues presented in this
appeal.
On August 11, 1985, Lincecum encountered Kathy Ann Coppedge
and her son, Casey, at a parking lot across the street from a
1 The confession was introduced at trial. Lincecum did not testify in his own behalf.
2 church in Brenham. As Kathy and Casey entered Kathy's car,
Lincecum forced his way in and drove off toward the town of
Burton. After driving a few miles, he turned off on a gravel
road and stopped. He went through Kathy's purse and took her
money. He then told Casey to get in the back seat, and, when
Casey asked him not to hurt his mother, Lincecum replied that he
would not.
Lincecum ordered Kathy out of the car and told her to take
off her clothes. They got back in the car, and Kathy picked up
Lincecum's knife and stabbed him in the left side. Lincecum
retrieved the knife, folded it up, and proceeded to choke her.2
He then bound Casey's hands with the strap from Kathy's purse and
placed Casey in the trunk. He eventually bound Kathy's hands and
placed her in the trunk as well. He drove the car to another
location and abandoned it, taking Kathy's rings and watch. The
evidence showed that the temperature that day exceeded 100
degrees. Kathy and Casey Coppedge were found dead in the trunk
of the car later that night.
The evidence showed that Kathy most likely died as a result
of strangulation rather than being placed in the trunk, while
Casey probably was still alive when placed in the trunk. Aurelio
Espinola, the chief deputy medical examiner for Harris County who
2 Lincecum stated in his confession that he choked her with her panty hose, but Aurelio Espinola, the chief deputy medical examiner for Harris County who testified regarding the post mortem examination conducted on Kathy Coppedge, disputed that panty hose was the ligature used to strangle her. He contended that it was more likely that Lincecum used the strap from her purse or a length of twine found underneath the bodies.
3 testified concerning the post mortem examination, testified that
the ligature marks around Kathy's neck indicated that she
probably was strangled for a long period of time. He estimated
that she would have lost consciousness after about three minutes,
but that the ligature probably was held around her neck for
approximately three more minutes.
Two persons testified at trial that they saw a black man
drive off from the parking lot in a blue car with a woman, and
both testified that they heard cries for help. There also was
testimony from a state forensic serologist that Kathy Coppedge's
dress had male semen stains all over the inside of the skirt part
of the dress. Testing disclosed that a person having Lincecum's
blood type could have deposited the semen on the dress. When
Kathy was found, her dress and bra were ripped, and her panties
were found beneath her legs.
Lincecum did not offer any evidence at the punishment phase
of the trial. During the guilt phase, however, his aunt, Eula
Belle Moore, testified that in June of 1985 she discussed
Lincecum's state of mind with Lincecum's parole officer, Mary
Kathryn Hebert. Moore had been concerned that Lincecum was not
talking much, and asked Hebert whether she could encourage
Lincecum to see a psychiatrist. She told Hebert that she thought
Lincecum "was disturbed . . . he was down under and I could see
he was very quiet. I felt he needed to talk to somebody."
Later, Moore testified that she thought Lincecum "felt that his
momma didn't care for him." Hebert confirmed the discussions
4 with Moore about Lincecum's welfare. Reading from her notes, she
stated that Moore had told her that Lincecum did not want to talk
and that Lincecum's problems may have stemmed from feeling
unloved by his mother.
Lincecum's conviction and sentence were affirmed on appeal.
Lincecum v. State, 736 S.W.2d 673 (Tex. Crim. App. 1987), cert.
denied, 486 U.S. 1061 (1988). Lincecum then sought state post-
conviction relief in the 23rd Judicial District of Brazoria
County, Texas, raising many of the same claims he later raised in
his federal petition. The state court entered findings of fact
and conclusions of law and denied the petition on December 9,
1988. The Texas Court of Criminal Appeals affirmed. On January
12, 1989, six days before his scheduled execution, Lincecum filed
the instant petition for habeas corpus relief in the district
court.3 The district court granted a stay of execution. On
December 6, 1989, the district court denied relief on all claims
and vacated the stay of execution. After Lincecum's request for
a certificate of probable cause was granted, we reinstated the
stay of execution pending final disposition of the appeal. After
the original briefing was completed, we requested supplemental
briefing on the applicability, if any, of our recent decision in
Graham v. Collins, 950 F.2d 1009 (5th Cir. 1992) (en banc)
(addressing mitigating evidence and the Texas capital sentencing
statute), on the case. We are now prepared to render a decision.
3 The record of the state habeas proceedings shows, and the State agrees, that Lincecum exhausted the claims presented in his federal petition in state court.
5 II. DISCUSSION
A. Failure to Instruct on Lesser Included Offenses
At trial, Lincecum requested instructions on the lesser
included offenses of murder and voluntary manslaughter. The
trial judge refused, instructing the jury only on the offense of
capital murder. Lincecum argues that the failure to instruct on
the lesser included offenses violated his rights under the Eighth
and Fourteenth Amendments.
In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court
invalidated that aspect of the Alabama capital murder statute
which prohibited the trial judge from giving an instruction on a
lesser included offense of capital murder. The Court's central
concern was that the unavailability of a lesser included offense
instruction would increase the risk of an unreliable adjudication
of guilt, a risk that cannot be tolerated in a capital case. Id.
at 637-38. The Court indicated that the basic rule extant in the
states on when a defendant is entitled to a lesser included
offense instruction would comport with federal due process
requirements. This standard was expressed as "a defendant is
entitled to a lesser included offense instruction where the
evidence warrants it." Id. at 636 & n.12 (citing, inter alia,
Day v. State, 532 S.W.2d 302 (Tex. Crim. App. 1975)); see Hopper
v. Evans, 456 U.S. 605, 610 (1982) (Beck stands for the
proposition that juries in capital cases must have the
opportunity to consider a lesser included noncapital offense
whenever the evidence would have supported such a verdict). This
6 standard continues to apply in Texas. See Godsey v. State, 719
S.W.2d 578, 584 (Tex. Crim. App. 1986) (instruction must be given
if there is "some evidence in the record that if the defendant is
guilty, he is guilty of only the lesser offense"); Lincecum, 736
S.W.2d at 678. Although Beck itself spoke only to a statute
under which the judge could not give the requested instruction,
we have held that its rationale applies equally to cases in which
a trial judge refuses to give an instruction which is available
under state law. Cordova v. Lynaugh, 838 F.2d 764, 767 & n.2
(5th Cir.), cert. denied, 486 U.S. 1061 (1988); Reddix v.
Thigpen, 805 F.2d 506, 511-12 (5th Cir. 1986).
In federal trials, "a lesser included offense instruction
should be given 'if the evidence would permit a jury rationally
to find [a defendant] guilty of the lesser offense and acquit him
of the greater.'" Hopper, 456 U.S. at 612 (citing Keeble v.
United States, 412 U.S. 205, 208 (1973)). We recognized in
Cordova that the standard described in Beck and the federal
standard are equivalent. 838 F.2d at 767. Thus, the question is
whether a rational jury could have convicted Lincecum on the
lesser included offense of murder or voluntary manslaughter yet
acquitted him on the offense of capital murder.
1. Murder
Lincecum was convicted for the offense described in section
(a)(2) of the Texas capital murder statute. The statute, Tex.
Penal Code Ann. § 19.03, provides in relevant part:
§ 19.03 Capital Murder
7 (a) a person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
. . .
(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, or arson . . . .
The murder statute in Texas, Tex. Penal Code Ann. § 19.02,
provides in relevant part:
§ 19.02 Murder
(a) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
The district court, in rejecting the claim that a murder
instruction should have been given, held that a jury could not
rationally have convicted Lincecum of murder because the only
evidence that Lincecum was at the scene placed him there in the
course of the commission of a robbery, kidnapping or aggravated
sexual assault. Lincecum argues that this analysis is erroneous
in that it assumes that under Texas law the jury could not have
found him guilty of a murder committed in the course of one of
the three underlying offenses yet acquitted him of capital
murder. A jury rationally could come to this conclusion, he
8 points out, because capital murder under § 19.03(a)(2), in
addition to requiring proof that the murder was caused while in
the course of committing one of the underlying offenses, requires
proof that the defendant acted knowingly and intentionally in
causing the victim's death. Because the crimes described in
§§ 19.02(a)(2) and (3) do not require an intent to kill, he could
have been convicted of one of the lesser included offenses even
if the same evidence which placed him at the scene of the murder
(chiefly, his own confession) showed that he had committed a
robbery, kidnapping or aggravated sexual assault.
Lincecum is correct that the intent element of capital
murder makes it possible for him to have been acquitted of that
crime yet convicted of murder. Not every death which is caused
in connection with a robbery, kidnapping or aggravated sexual
assault leads to a conviction for capital murder; a person can be
convicted of the lesser included offense of murder if he caused
the death in connection with one of these offenses with intent
only to cause serious bodily injury (§ 19.02(a)(2)) or if his
only intent was to commit the underlying offense. (§
19.02(a)(3)).4 The question whether an instruction on murder was
warranted therefore depends on whether a rational jury could have
found that Lincecum did not intend to kill Kathy Coppedge.
4 For example, felony murder under § 19.02(a)(3) requires only the intent to commit the underlying offense. Livingston v. State, 739 S.W.2d 311, 336 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1210 (1988). Evidence that placed Lincecum at the scene of the murder while committing a robbery therefore did not necessitate a capital murder conviction.
9 On the evidence in this case, we hold that such a jury
finding would have exceeded the bounds of rationality, for the
evidence of Lincecum's intent to kill was simply overwhelming.
Lincecum attempts to demonstrate otherwise by pointing to that
part of his confession in which he allegedly told Casey Coppedge
that he would not hurt Kathy Coppedge. This statement, viewed in
light of Lincecum's actions shortly after making it, does not
evince a lack of intent to kill Kathy Coppedge, but rather an
intent to mollify or reassure Casey. It is entirely inconsistent
with the brutal treatment of Kathy that followed. By Lincecum's
own admission, the statement was made before he ordered Kathy
Coppedge out of the car, before she stabbed him with his knife,
before he choked her and before he locked her in the trunk.
Given the evidence that Lincecum continued choking Kathy for
approximately three minutes after she was dead, no rational juror
could have taken his statement to Casey as demonstrating a lack
of an intent to kill. Quite the contrary, the significant amount
of time he choked Kathy is strong evidence of his intent to kill.
Cf. Fearance v. State, 620 S.W.2d 577, 584 (Tex. Crim. App. 1980)
(evidence that defendant repeatedly stabbed victim shows intent
to murder), cert. denied, 454 U.S. 899 (1981).
Even if the jury disbelieved the expert medical testimony
that the choking continued after Kathy Coppedge was dead5 -- and
therefore proceeded on the assumption that she was still alive
5 A rational jury might have disbelieved this testimony, as it contradicted Lincecum's statement.
10 when placed in the trunk -- Lincecum's action in locking her in
the trunk on a day in which the temperature exceeded 100 degrees
clearly reveals an intent to kill. Lincecum focuses exclusively
on the statement he allegedly made to Casey, but the rest of his
statement, as well as the physical evidence, can lead only to the
conclusion that he intended to kill Kathy Coppedge.
2. Voluntary Manslaughter
Lincecum also was not entitled to an instruction on
voluntary manslaughter. The voluntary manslaughter statute in
Texas, Tex. Penal Code Ann. § 19.04, provides in relevant part:
§ 19.04 Voluntary Manslaughter
(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.
Sudden passion is defined as "passion directly caused by and
arising out of provocation by the individual killed or another
acting with the person killed which passion arises at the time of
the offense and is not solely the result of former provocation."
Tex. Penal Code Ann. § 19.04(b). Adequate cause is defined as
"cause that would commonly produce a degree of anger, rage,
resentment, or terror in a person of ordinary temper, sufficient
to render the mind incapable of cool reflection." Tex. Penal
Code Ann. § 19.04(c). Lincecum contends that the evidence from
his confession that he strangled Kathy Coppedge only after she
stabbed him with his knife could lead a rational jury to find
that he acted with sudden passion arising from adequate cause.
11 The Texas Court of Criminal Appeals observed that Kathy
Coppedge stabbed Lincecum in self defense and in the defense of
her son. Under these circumstances, the court held, Lincecum,
even if assumed to be acting under sudden passion, could not
claim that he acted with adequate cause. Lincecum, 736 S.W.2d at
679. The court cited Penry v. State, 691 S.W.2d 636 (Tex. Crim.
App. 1985), cert. denied, 474 U.S. 1073 (1986), and Goff v.
State, 681 S.W.2d 619 (Tex. App. - Houston [14th Dist.] 1983),
aff'd, 720 S.W.2d 94 (Tex. Crim. App. 1986), in support of its
conclusion. In Penry, the court had held that the issue of
voluntary manslaughter was not raised where the victim stabbed
the defendant with a scissors while being raped, but where the
defendant initiated the criminal episode, committed an aggravated
rape before killing the victim, and revealed in his confession an
intent to kill the victim. Penry, 691 S.W.2d at 641-42. In a
footnote, the court noted that it would be difficult to imagine a
situation in which sudden passion could arise from adequate cause
while the defendant was in the course of committing one of the
underlying offenses which would support a capital murder
conviction under Tex. Penal Code Ann. § 19.03. 691 S.W.2d at 642
n.2. In Goff, the court of appeals had held that there was no
adequate cause where the victim may have stabbed the defendant,
but where the defendant's testimony evidenced an intent to hurt
the victim. 681 S.W.2d at 625.
According to Lincecum's own confession, he retrieved the
knife from Kathy Coppedge, folded it up, and then proceeded to
12 strangle her and place her in the trunk, all while committing one
of the underlying offenses of § 19.03. Texas law plainly does
not consider adequate cause to arise under these circumstances.
Thus, because the jury was precluded as a matter of state law
from finding that Lincecum committed voluntary manslaughter, the
trial judge's failure to instruct the jury on this offense was
not constitutional error.6
B. Refusal to Grant Evidentiary Hearing
Lincecum next argues that the district court erred in
6 As in Hill v. Black, 920 F.2d 249 (5th Cir. 1990) (per curiam), opinion on rehearing, 932 F.2d 369 (5th Cir. 1991), our conclusion is driven by the unavailability, as a matter of state law, of an instruction on the lesser included offense under the facts presented to the jury. In Hill, the petitioner sought an instruction on a lesser included offense of capital murder. In our opinion on rehearing, we responded to the petitioner's argument that Cordova required an independent examination of the evidence by explaining that "[w]here, as here, a claim turns on an application of state law rather than federal law, this court must give deference to the articulation by the state's highest court of how the state law applies to the facts of the case." Hill, 932 F.2d at 374. The evidence in that case showed that the murder took place during the commission of a robbery, Hill, 932 F.2d at 374; Hill v. State, 432 So. 2d 427, 440 (Miss.), cert. denied, 464 U.S. 977 (1983), and Mississippi law precluded a conviction for anything less than capital murder if these two crimes "'are connected in a chain of events and occur as part of the res gestae.'" Hill v. State, 432 So. 2d at 441 (quoting Pickle v. State, 345 So. 2d 623, 627 (Miss. 1977)). The effect of state law on Lincecum's entitlement to an instruction is the same as in Hill: under the state law of voluntary manslaughter as articulated by the Texas courts, a defendant is not, as a matter of law, entitled to an instruction under the facts presented to Lincecum's jury. Thus, even taking as true all the evidence which might establish adequate cause, a jury is precluded as a matter of state law from finding that Lincecum satisfied the elements of voluntary manslaughter. Whether this analysis is expressed as invocation of the § 2254(d) presumption of correctness, as in Hill, or as a simple application of the state law governing the lesser included offense, the result is the same.
13 denying, without holding an evidentiary hearing, his claims that
he received ineffective assistance of counsel and that the
inability of a jury rationally to determine the future
dangerousness of convicted murderers renders unconstitutional the
Texas capital sentencing statute.
1. The Ineffective Assistance Claim
In the district court, Lincecum alleged thirteen separate
ways in which his appointed trial counsel, Robert J. Kuhn,
provided ineffective assistance. The district court found that
all the allegations were too conclusory to raise an
ineffectiveness claim under Strickland v. Washington, 466 U.S.
668 (1984), and refused to grant an evidentiary hearing. Among
Lincecum's claims were that counsel "fail[ed] to introduce
available mitigating evidence at the penalty phase of the trial
in the form of testimony from the defendant's family members,
acquaintances, clergy and former girlfriend and her children" and
"fail[ed] to introduce any evidence whatsoever at the penalty
phase of the trial." On appeal, Lincecum contests the denial of
his motion for an evidentiary hearing as to these claims of
ineffectiveness only.
To succeed on an ineffectiveness claim, Lincecum must show
(1) that counsel's performance was deficient in that it fell
below an objective standard of reasonableness and (2) that the
deficiency actually prejudiced the defense. Strickland, 466 U.S.
at 688-94; Smith v. Puckett, 907 F.2d 581, 584 (5th Cir. 1990),
cert. denied, 111 S. Ct. 694 (1991). As the range of attorney
14 conduct that may be considered reasonable is extremely wide and
highly dependent on the necessities of a given case, Strickland,
466 U.S. at 688-89, our review on the first "prong" of the
Strickland test is highly deferential. Id. The second "prong"
requires a defendant to demonstrate a reasonable probability
that, but for the attorney's unprofessional errors, the result of
the proceeding would have been different. Id. at 694. A court
reviewing an ineffectiveness claim need not approach these
inquiries in any particular order; a failure to establish either
requirement necessarily defeats the claim. Id. at 697; Smith,
907 F.2d at 584. With these standards in mind, we proceed to
consider Lincecum's contention that a federal evidentiary hearing
was necessary to evaluate this claim.
In the state collateral proceedings, Lincecum raised
substantially the same allegations of ineffectiveness in Kuhn's
failure to investigate and present mitigating evidence as he
raised in the district court. He did not, however, offer any
affidavits or other evidence which would indicate that other
persons were in fact willing to testify on his behalf had they
been contacted, nor did he reveal what the likely substance of
the undiscovered mitigating evidence would have been. The court
ordered Kuhn to respond to all of Lincecum's allegations of
ineffective assistance. Kuhn did so in a detailed affidavit,
explaining that he pursued all potential avenues of mitigating
evidence but decided that only Lincecum's aunt and parole officer
could be of assistance. He further stated that Lincecum's former
15 girlfriend, Rita Mathis, had turned out to be antagonistic toward
Lincecum and that, despite attempts to locate additional
character witnesses, he was aware of no one else who could have
testified in Lincecum's behalf and of no other evidence that
could have helped. He also pointed out that he decided to
abandon any defense based on a mental defect after the
psychologist who interviewed Lincecum told Kuhn that she did not
believe Lincecum suffered from any such defect. Finding the
assertions in Kuhn's affidavit to be true, the state court
concluded that Lincecum had received the reasonably effective
assistance of counsel demanded by the Constitution with respect
to the presentation of mitigating evidence.7
A federal evidentiary hearing on a constitutional claim must
be held only where the state court has not provided a hearing,
where the petitioner alleges facts which, if proved, would
entitle him to relief, and where the record reveals a genuine
factual dispute. Johnson v. Estelle, 704 F.2d 232, 239 (5th Cir.
1983), cert. denied, 465 U.S. 1009 (1984). Where the state court
has held a hearing to consider the claim, we must presume the
correctness of its factual findings. 28 U.S.C. § 2254(d); Sumner
v. Mata, 449 U.S. 531 (1981); King v. Collins, 945 F.2d 867, 868
(5th Cir. 1991). The predicate facts which form the basis for a
claim of ineffective assistance of counsel are subject to this
presumption. Strickland, 466 U.S. at 698; Carter v. Collins, 918
7 The state court did not address the prejudice prong of Strickland.
16 F.2d 1198, 1202 (5th Cir. 1990). Lincecum argues that the
presumption does not apply here because the relevant finding
states that "[t]here was no 'mitigating evidence' which defense
counsel knew about, but failed to present to the jury during the
penalty phase of the trial." This, he says, means that the state
court made a finding only with respect to evidence Kuhn already
knew about, and made no finding about Kuhn's failure to discover
other available mitigating evidence. He also suggests that the
exception to the § 2254(d) presumption for findings made in
hearings that were not full and fair applies to a finding made on
the basis of Kuhn's affidavit alone.
We disagree with Lincecum's characterization of the scope of
the state court finding. Immediately before the language quoted
above, the court stated that "[t]he facts related in the
affidavit of Robert J. Kuhn filed in this cause pursuant to court
order are true, and present an accurate recitation of defense
counsel's pretrial and trial preparation and strategy." Kuhn's
affidavit describes not only the mitigating evidence he knew
about, but also his inability to locate additional witnesses who
could have been beneficial to Lincecum. The state court's
finding is not limited to Kuhn's actions with respect to
mitigating evidence he already knew about, but encompasses a
conclusion about all of Kuhn's actions in investigating the
available mitigating evidence. It is, therefore, a finding with
respect to the facts relevant to Lincecum's claim.
Lincecum also cannot detract from the presumption of
17 correctness by arguing that the state court's decision to rely
solely on Kuhn's affidavit deprived him of a full and fair
hearing. State courts do not necessarily have to hold live
evidentiary hearings for the presumption to attach, but may, in
appropriate circumstances, resolve factual disputes on the basis
of written affidavits. May v. Collins, ___ F.2d ___, ___ (5th
Cir. 1992); Clark v. Collins, ___ F.2d ___, ___ (5th Cir.), cert.
denied, ___ S. Ct. ___ (1992). We have held on more than one
occasion that the presumption may attach to the findings
underlying an ineffective assistance claim when those findings
are made on the basis of competing affidavits. Clark, ___ F.2d
at ___; Carter, 918 F.2d at 1202; Buxton v. Lynaugh, 879 F.2d
140, 146 (5th Cir. 1989), cert. denied, 110 S. Ct. 3295 (1990).
But here the state court was not even faced with competing
affidavits, for Lincecum offered nothing more than the conclusory
allegations in his pleadings in support of his claim that Kuhn
failed to investigate, develop and present relevant mitigating
evidence. Kuhn's affidavit was the only evidence on the
underlying question of what actions Kuhn had taken and what other
sources of mitigating evidence might have been available, so
there was no disputed fact question which would even require a
hearing. Thus, we cannot conclude that the state court's
procedures were so deficient as to strip that court's findings of
the presumption of correctness.
The legal conclusion of the state court and the district
court that Lincecum was not deprived of effective assistance of
18 counsel was correct. This is not a case like Wilson v. Butler,
813 F.2d 664 (5th Cir. 1987), cert. denied, 484 U.S. 1079 (1988),
where we held that an evidentiary hearing was necessary to fully
explore the petitioner's claim that his counsel had failed to
investigate and present evidence of mental impairment as a
mitigating factor. There, the petitioner had adduced a
significant amount of evidence, including the affidavit of a
psychologist, about his past and present mental impairment. The
petitioner's trial counsel did not assert that he had considered
investigating or presenting this evidence. We held that, because
the state court record did not contain evidence sufficient to
enable the district court to resolve the claim, and because the
evidence put forward by the petitioner showed that counsel's
failure to investigate may have been unreasonable and may have
prejudiced him in the penalty phase, a hearing was warranted.
Id. at 671-73. Here, however, no hearing is necessary because
the state court record contains adequate, relevant evidence on
the factual basis for an ineffectiveness claim. See Prejean v.
Smith, 889 F.2d 1391, 1403 (5th Cir. 1989), cert. denied, 494
U.S. 1090 (1990); Joseph v. Butler, 838 F.2d 786, 788 (5th Cir.
1988). That Lincecum did not present to the state court any
concrete indications of what additional mitigating evidence could
have been presented does not undermine the adequacy of the
record; it merely means that he was unable to raise a genuine
19 dispute of fact about his trial counsel's ineffectiveness.8
Lincecum asserts that various family members, including his
mother (Louisa Gentry), his grandmother, his younger brothers and
his uncle, would have testified regarding his disadvantaged
background and diminished mental capacity. He also mentions
several persons in the Fort Worth area, including his former
girlfriend Sheila Harris, who could have provided similar
testimony. Finally, he refers to records of institutions in
which he resided which would show limited intelligence,
borderline to mild mental retardation and other unspecified
mitigating factors. He faults Kuhn for failing to provide this
information both to the court-appointed psychologist who
evaluated him and to the jury. The only indication that any of
his friends and relatives could have provided mitigating
evidence, however, comes from the affidavits of Gentry and
Christopher Kallaher, Lincecum's counsel in the federal habeas
proceeding. Neither requires an evidentiary hearing. Even
assuming that Kuhn's failure to contact Gentry was unreasonable,
she avers in her affidavit that she would have testified to the
fact that she left Lincecum with Eula Belle Moore (her sister)
and that Lincecum may have harbored some resentment for this.
This is precisely the same testimony Eula Belle Moore gave at
trial. Thus, Gentry's testimony would merely have been
8 Lincecum has not suggested that counsel was unable to develop the record in state court due to time constraints imposed by the court, as in Streetman v. Lynaugh, 812 F.2d 950 (5th Cir. 1987).
20 duplicative and could not have had an effect on the jury's
decision to assess the death penalty. See Lavernia v. Lynaugh,
845 F.2d 493, 498 (5th Cir. 1988) (failure to call witnesses
whose testimony would have been cumulative on issue of whether
defendant spoke English did not prejudice defendant).
As for Kallaher's affidavit, we are loathe to accept the
self-serving statements of habeas counsel as evidence that other
persons were willing and able to testify on Lincecum's behalf.
None of these persons has submitted an affidavit indicating that
he or she would have aided Lincecum had he or she been asked, so
we are left simply with Lincecum's assertions that unspecified
mitigating evidence existed. Absent any concrete indication of
the substance of the mitigating evidence his friends and family
would have provided, the law is clear that an evidentiary hearing
is not called for. Byrne v. Butler, 845 F.2d 501, 513-14 (5th
Cir.) ("bold assertions on a critical issue in a habeas petition,
unsupported and unsupportable by anything else contained in the
record, are insufficient to warrant an evidentiary hearing"),
cert. denied, 487 U.S. 1242 (1988); see also Joseph, 838 F.2d at
788; Ross v. Estelle, 644 F.2d 1008, 1011 (5th Cir. 1983) (per
curiam).
As for the evidence of mental impairment, there is nothing
in the record to demonstrate that Kuhn failed to present
Lincecum's records to the psychologist aside from the self-
serving affidavit of Lincecum's habeas counsel. There is no
affidavit from the psychologist indicating what was presented or
21 suggesting that the records to which Lincecum refers would have
altered her evaluation. The argument that Kuhn was ineffective
for failing to present the records as mitigating evidence to the
jury, apart from the alleged failure to present them to the
psychologist, was never argued to the district court and
therefore will not be considered on appeal. Alexander v.
McCotter, 775 F.2d 595, 603 (5th Cir. 1985). In sum, Lincecum
received an adequate hearing on his claim of ineffective
assistance in the state court, and the facts found by that court
lead to the conclusion that Kuhn acted in a reasonable manner.
He has provided nothing in the federal habeas proceedings that
would change this conclusion.
2. Unconstitutionality of the Texas Death Penalty Statute
Lincecum also was denied an evidentiary hearing on his claim
that the inability of juries accurately to predict future
dangerousness renders the Texas capital sentencing statute
unconstitutional. At the time of Lincecum's trial, the Texas
capital sentencing statute required the jury, after finding a
defendant guilty of capital murder, to answer up to three
"special issues" to determine whether the punishment should be
death or life imprisonment. Tex. Code Crim. Proc. Ann. art.
37.071.9 First, the jury must decide whether the defendant acted
deliberately. Id. art. 37.071(b)(1). Next, the jury must
9 The statute has since been amended, but the new procedures apply only to trials held after September 1, 1991. For discussion, see Graham v. Collins, 950 F.2d 1009, 1012 n.1 (5th 1992) (en banc).
22 determine whether there is a probability that the defendant would
commit acts of violence in the future that would constitute a
continuing threat to society. Id. art. 37.071(b)(2). In
appropriate cases, including this one, the jury may be asked to
determine whether the conduct of the defendant was unreasonable
in response to provocation by the victim. Id. art. 37.071(b)(3).
If the jury answers "yes" to all three special issues, punishment
is assessed at death. Lincecum submitted research performed by
Professors James Marquart, Sheldon Ekland-Olson and Jonathan
Sorensen of Sam Houston State University in which it was
concluded that defendants sentenced to death are no more likely
to commit violent acts in the future than defendants sentenced to
life imprisonment and released into the general prison
population.10 Lincecum contends that a hearing is necessary to
resolve the factual questions raised by this research before a
court can review his constitutional claim. We disagree.
The Supreme Court has never intimated that the factual
correctness of the jury's prediction on the issue of future
dangerousness, either in a particular case or over time, bears
upon the constitutionality of the Texas capital sentencing
statute. In Jurek v. Texas, 428 U.S. 262 (1976), the case in
10 The study compared life-sentenced inmates with defendants whose death sentences were commuted following Furman v. Georgia, 408 U.S. 238 (1972), and inmates whose death sentences under the current Texas statute had been overturned on appeal or commuted by executive authority. See J. Marquart, S. Ekland-Olson & J. Sorenson, Gazing into the Crystal Ball: Can Jurors Accurately Predict Dangerousness in Capital Cases, 23 Law & Society Rev. 101 (1989).
23 which the Court upheld the present Texas statute, a majority
rejected the argument that the second special issue was vague and
meaningless because it is impossible for juries to predict future
behavior. The opinion of Justices Stewart, Powell and Stevens
observed that "[i]t is, of course, not easy to predict future
behavior. The fact that such a determination is difficult,
however, does not mean that it cannot be made. Indeed,
prediction of future criminal conduct is an essential element in
many of the decisions rendered throughout our criminal justice
system." Jurek, 428 U.S. at 274-75. After discussing some of
the types of predictions of future behavior common in the
criminal law, the opinion concluded that "[w]hat is essential is
that the jury have before it all possible relevant information
about the individual defendant whose fate it must determine.
Texas law clearly assures that all such evidence will be
adduced." Id. at 276.11
Later decisions which emphasize the centrality of the
defendant's ability to present all relevant mitigating evidence,
e.g., Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio,
438 U.S. 586 (1978), validate Jurek's focus on whether the second
special issue allows for consideration of mitigating evidence and
not whether juries' actual predictions are correct. The
11 The Court's later holding in Penry v. Lynaugh, 492 U.S. 302 (1989), does not cast any doubt on the constitutionality of the second special issue per se; it merely holds that where the second special issue does not give the jury an appropriate vehicle to consider certain types of mitigating evidence, a special instruction to the jury is necessary.
24 reluctance to disturb the predictive element of the second
special issue also comports with the requirement that capital
sentencing decisions be based on an individualized inquiry into
the circumstances of the crime and the characteristics of the
particular offender. See Gregg v. Georgia, 428 U.S. 153, 197
(1976) (opinion of Stewart, Powell & Stevens, JJ.); id. at 221-22
(White, J., concurring in the judgment); McCleskey v. Kemp, 481
U.S. 279, 311 (1987) ("The capital sentencing decision requires
the individual jurors to focus their collective judgment on the
unique characteristics of a particular criminal defendant."). In
McCleskey, the Court acknowledged that a statistical study
revealed the possibility that juries in Georgia impermissibly
took race into account in making capital sentencing decisions,
but declined to hold on the basis of this evidence that the risk
was constitutionally unacceptable. Id. at 312-13. The Marquart
et al. study is similar to the study in McCleskey in the sense
that it suggests that there is a risk that juries are unable to
make correct predictions about future dangerousness. The Court
acknowledged this risk and tolerated it in Jurek, and has done
nothing in the ensuing years that would suggest it considers the
risk constitutionally unacceptable. Accordingly, because
Lincecum's claim would fail as a matter of law, he is not
entitled to an evidentiary hearing.
C. Instruction on Mitigating Evidence
Relying on the principle of Penry v. Lynaugh, 492 U.S. 302
(1989), Lincecum next argues that the application of the Texas
25 capital sentencing statute was unconstitutional in this case
because, absent a special instruction, the jury could not give
proper consideration to his mitigating evidence. He also
suggests that the statute is unconstitutional because it
prevented the presentation of certain other mitigating evidence.
Initially, we note that Lincecum's trial counsel's failure
to request an instruction on the uses the jury may make of
mitigating evidence does not operate as a state procedural bar
which would preclude federal review. Under Texas law, a Penry
claim is preserved even if no instruction on mitigating evidence
is requested or no objection is made to the instructions given at
trial. Selvage v. Collins, 816 S.W.2d 390, 392 (Tex. Crim. App.
1991) (answering certified question from Fifth Circuit); Black v.
State, 816 S.W.2d 350 (Tex. Crim. App. 1991). On the other hand,
it is by now well-settled that no Penry claim can arise with
respect to mitigating evidence that could have been, but was not,
introduced at trial. May v. Collins, 904 F.2d 228, 232 (5th Cir.
1990), cert. denied, 111 S. Ct. 770 (1991); DeLuna v. Lynaugh,
890 F.2d 720, 722 (5th Cir. 1989). Thus, the only claim we
consider is the claim that Lincecum was entitled to an
instruction to guide the jury's consideration of his mitigating
evidence.12
Lincecum's mitigating evidence consisted primarily of the
12 Despite the fact that Lincecum's conviction became final before Penry, the rule of Penry may be applied retroactively because it does not enunciate a "new" rule for purposes of Teague v. Lane, 489 U.S. 288 (1989). See Penry, 492 U.S. at 315.
26 testimony (during the guilt-innocence phase) of his aunt, Eula
Belle Moore. She testified that she had raised Lincecum until
the age of four because his mother was still in high school when
he was born. At four, Lincecum moved back with his mother in
Fort Worth. She further testified that in June 1985, two months
before Kathy Coppedge was murdered, she noticed that Lincecum
"was disturbed," "was down under," and "was very quiet." She
"felt he needed to talk to somebody," so she recommended to
Lincecum's parole officer, Mary Kathryn Hebert, that Lincecum
obtain psychiatric counseling. Moore also testified that she
told Hebert that she thought Lincecum always felt his mother did
not care for him. Hebert corroborated the substance of these
discussions with Moore.
As noted earlier, the Supreme Court in Jurek upheld the
constitutionality of Texas' decision to have the jury answer two
or three specific questions in order to determine whether a death
sentence is warranted. The Court was satisfied that the second
special issue, as construed by the Texas Court of Criminal
Appeals, satisfied the Eighth Amendment's requirement that the
jury be permitted to consider any and all mitigating evidence
which might counsel against a death sentence. See Jurek, 428
U.S. at 272 (opinion of Stewart, Powell & Stevens, JJ.). The
Court reaffirmed this view of the Texas statute in Franklin v.
Lynaugh, 487 U.S. 164 (1988), holding that no special instruction
was necessary to enable the jury to consider the mitigating
effect of the petitioner's evidence that he had a good prison
27 disciplinary record. The plurality pointed out that "Lockett[ v.
Ohio, 438 U.S. 586 (1978)] does not hold that the state has no
role in structuring or giving shape to the jury's consideration
of . . . mitigating factors," id. at 179, and the concurrence
found that the petitioner's evidence had no relevance as
mitigating evidence beyond the scope of the special issues. Id.
at 185 (O'Connor, J., concurring).
The following year, however, the Court held in Penry that
the special issues gave the jury no vehicle to express the view
that Penry's evidence of organic brain damage, mental retardation
and a troubled childhood reduced his culpability for the crime.
See Penry, 492 U.S. at 323. Penry's evidence had relevance to a
negative answer to the first special issue (deliberateness) but
also had relevance as a mitigating factor beyond the scope of the
finding the jury was instructed to make. As for the second
special issue, Penry's evidence was likely to have caused the
jury to consider Penry a future danger, while at the same time
reducing his moral culpability for the crime. Id. at 323-24.
The evidence was not considered to have any relevance to the
inquiry demanded by the third special issue. Thus, the Court
concluded that without an instruction that the jury could
consider the effect of Penry's evidence apart from the special
issues, Penry's sentence was imposed in violation of the Eighth
Amendment.
Our recent en banc opinion in Graham v. Collins, 950 F.2d
1009 (5th Cir. 1992) (en banc), confirmed that, despite Penry,
28 "Jurek continues to apply, in instances where no major mitigating
thrust of the evidence is substantially beyond the scope of all
the special issues." Graham, 950 F.2d at 1027. Graham had
proffered as mitigating his youth at the time of the crime, his
respect for his family, his lack of a history of violence, his
studiousness, and the fact that his mother had a "nervous
condition." Id. at 1032-33. The most difficult question was
whether the special issues allowed for adequate consideration of
Graham's youth. We determined that, although Graham may have
been less culpable because he was young, he was "also less likely
to be dangerous when no longer young." Id. at 1031. We
concluded, therefore, that because youth suggested a "no" answer
to the second special issue, it "afford[ed] an adequate vehicle
by which the jury can give effect to the mitigating aspect of
youth." Id. The other mitigating evidence (aside from Graham's
mother's illness) we considered akin to the "good character"
evidence which was proffered in Jurek and which the Court there
found could be taken into account by the second special issue.
As for the evidence of Graham's mother's illness, we pointed out
that there had been no indication that this had ever had an
adverse effect on Graham. Id. at 1033. Thus, we concluded that
Graham was not entitled to a special instruction to guide the
jury's consideration of his mitigating evidence.
Lincecum contends that Graham sharpens the contrast between
what is and is not "Penry-type" evidence. We agree, but do not
believe that the conclusion necessarily follows that simply
29 because Lincecum's mitigating evidence did not consist of the
transitory factor of youth, it falls in the category of Penry-
type evidence. The evidence Lincecum has emphasized most
strenuously throughout these proceedings is that of a troubled
childhood. Yet close examination of Moore's testimony at trial
reveals that she merely stated that Lincecum had been left to
live with her for the first four years of his life because his
mother was very young when he was born. Viewing this testimony
in the most favorable light possible, this hardly demonstrates
the kind of troubled childhood marked by savage abuse that was
present in Penry. As with the evidence that Graham's mother had
a nervous condition, there is simply no showing that living with
his aunt produced such a turbulent and unsteady family situation
that Lincecum suffered from emotional problems which would reduce
his moral culpability for his crime. Moore gave no details about
Lincecum's childhood apart from his place of residence for the
first four years of his life, and none appear in the record. The
only indication that this had a lasting emotional effect on
Lincecum comes from Moore's opinion that Lincecum thought his
mother did not care for him. This is hardly evidence of "a
disturbed childhood and adolescence which left him bitter and
resentful," as Lincecum claims.
Moore's testimony that in June 1985 Lincecum seemed
"disturbed," was "quiet," and seemed like he needed to talk to
someone likewise does not fall within the category of Penry
evidence necessitating a special instruction. In Graham, we
30 characterized "being under some particular emotional burden at
the time [of the crime]" as similar to youth in that its
transitory nature can be taken into account in answering the
second special issue. 950 F.2d at 1029. Assuming that Moore's
testimony could be construed by the jury as indicating that the
crime was in some way connected to whatever emotional problems
are implicated by seeming "disturbed" and being "quiet," the jury
could find that the crime was an atypical reaction to the
difficulties Lincecum was suffering at the time and could express
this view by finding that he would not pose a continuing threat
to society.
On the other hand, to the extent Moore's testimony showed
that Lincecum had emotional difficulties the significance of
which transcended the special issues, our opinion in Graham leads
to the conclusion that the evidence falls short of that proffered
in Penry. In Graham, we emphasized the importance of the fact
that Penry's evidence showed he was burdened, through no fault of
his own, with "uniquely severe permanent handicaps" including
mental retardation, organic brain damage, and an abused
childhood. 950 F.2d at 1029. Lincecum's evidence consisted
merely of the inexpert opinion of his aunt about his state of
mind, hardly the kind of comprehensive evaluation offered in
Penry's case. The source of his quietness and disturbance was
not explored and was not connected to any particular events or
past conditions. In short, if Penry represents "a set of
atypical circumstances . . . where the defense's mitigating
31 evidence would have either no substantial relevance or only
adverse relevance to the second special issue," Graham, 950 F.2d
at 1029, it cannot form the basis for relief here.
III. CONCLUSION
For all the foregoing reasons, the district court's denial
of habeas relief is AFFIRMED, and the stay of execution
previously entered by this court is VACATED.