                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                 IN THE UNITED STATES COURT OF APPEALS           December 18, 2003
                         FOR THE FIFTH CIRCUIT
                                                              Charles R. Fulbruge III
                                                                      Clerk

                              No. 01-60516



RICKY R. CHASE,

                                       Petitioner-Appellant,

versus

CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI
DEPARTMENT OF CORRECTIONS; MIKE MOORE, Attorney
General of the State of Mississippi,

                                       Respondent-Appellee.

                        --------------------
            Appeal from the United States District Court
              for the Southern District of Mississippi
                            (3:97-CV-744)
                        --------------------

                       ON PETITION FOR REHEARING

Before JOLLY, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

      Petitioner-Appellant Ricky R. Chase, a Mississippi death row

inmate, petitions for panel rehearing following our affirmance of

the   district   court's   judgment   denying   his   28   U.S.C.    §   2254

petition.   Chase contends that our decision is irreconcilable with

the Supreme Court's recent decision in Wiggins v. Smith, 123 S. Ct.

2527 (2003), and that the Mississippi Supreme Court's decision was

      *
        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that this opinion should not be published and is not precedent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.
an   objectively      unreasonable     application      of     Strickland    v.

Washington, 466 U.S. 668 (1984), in light of Wiggins. Chase argues

that defense counsel was ineffective in taking only "perfunctory

steps"   to   investigate    Chase’s       mental   capacity    despite   clear

indications    of     his   below-average       intelligence      and     mental

retardation, stating that the Wiggins Court reviewed facts similar

to those present in his case.

     In Wiggins, the petitioner's attorneys failed to investigate

and present mitigating evidence of his "dysfunctional background"

despite having some information available to them in a presentence

investigation report and social service records.               These indicated

that the petitioner had suffered severe physical and sexual abuse

as a child, had an alcoholic mother, and was borderline retarded

with an IQ of 79.      See Wiggins, 123 S. Ct. at 2532-33, 2536.            The

Supreme Court held that, under Strickland, the concern was not

whether "counsel should have presented a mitigation case" but

"whether the investigation supporting counsel's decision not to

introduce mitigating evidence of Wiggins' background was itself

unreasonable."      Id. at 2536.   The Court concluded that, given the

information in the presentence report and the social services

reports, counsel's decision not to expand the investigation into

Wiggins' life history fell short of professional standards, id. at

2536-38, and that Wiggins was prejudiced by counsel's failure. Id.

at 2542-44.



                                       2
     Wiggins is distinguishable from the instant case. In Wiggins,

defense counsel failed to follow standard practice in preparing a

social history report for the defendant despite availability of

public funds to do so.       Id. at 2536.    Here, defense counsel moved

for, and was granted, permission to obtain two psychological

evaluations.     Merely      conducting     some    investigation       is    not

necessarily sufficient; "[i]n assessing the reasonableness of an

attorney's investigation . . . a court must consider not only the

quantum of evidence already known to counsel, but also whether the

known evidence would lead a reasonable attorney to investigate

further."   Wiggins, 123 S. Ct. at 2538.      Yet the evidence possessed

by counsel in Wiggins is qualitatively different from the evidence

that was that present here.

     First, defense counsel in Wiggins possessed a psychologist's

report   indicating   that    the   petitioner     had   an   IQ   of   79,   had

difficulty coping with demanding situations, and had a personality

disorder.    Id. at 2536.       Second, the petitioner’s presentence

report noted his misery as a youth, quoted his description of his

own background as "'disgusting,'" and observed that the petitioner

spent most of his life in foster care.               Id.      Finally, social

services reports revealed that the petitioner's mother was a

chronic alcoholic, that he was shuttled between foster homes and

had emotional difficulties, that he had frequent, lengthy absences

from school, and that, on at least one occasion, his mother left

him and his siblings alone for days without food.              Id. at 2537.

                                      3
       Here, by contrast, as the Mississippi Supreme Court noted,

"there was no evidence presented, nor was it alleged, that Ricky

Chase was the victim of child abuse, poverty, substance abuse or

mental problems resulting from physical injury or organic disease."

Chase v. State, 699 So. 2d 521, 528 (Miss. 1997).            Chase does not

contend now that he was a victim of such circumstances.

       Defense counsel here knew that Chase had never failed a grade

in school, had almost completed tenth grade before dropping out,

and had been a good athlete in high school.          Counsel also knew that

Chase had never been in special education classes and had completed

a welding course.          As noted in the panel opinion, Dr. Perry's

indication that Chase's Performance IQ was in the "mildly retarded"

range was qualified by his finding that he did not believe Chase

was performing at his best on that particular part of the test.

When Dr. Perry administered the Wechsler Memory Scale (WMS) test,

on which occasion he believed that Chase was performing at his

best, Chase achieved a score in the average range, indicating no

problems with recent recall.

       Defense counsel knew that Dr. Perry had found that Chase

possessed reading skills at the tenth grade level and spelling

skills at the seventh grade level, and that he was literate.             As

also    noted   in   the    panel   opinion,   Dr.   Perry   found   Chase's

intellectual ability to be "at least in the borderline range,"

found no "evidence of a mental disorder in observing him and in

reviewing his history," found "no indications of a thought disorder

                                       4
of   any   type,"   and   concluded   there   was   no   need   for   further

evaluation or treatment of any mental disorder.          Subsequently, Dr.

Pate (a psychiatrist) voiced the opinion that Chase did not have a

mental illness or a history compatible with a mental illness.            The

Mississippi Supreme Court concluded that Dr. Perry's findings were

not "powerful evidence."      Chase, 699 So. 2d at 529.

      Although Chase invokes Wiggins as new Supreme Court precedent,

in reality he is re-arguing the issue previously presented to this

panel.     In light of the information possessed by Chase’s defense

counsel, Wiggins does not alter our conclusion that the state

supreme court's decision was not contrary to or an unreasonable

application of federal law.

      The petition for panel rehearing is DENIED. No member of this

panel nor judge in regular active service on the court having

requested that the court be polled on rehearing en banc, see FED.

R. APP. P. and 5TH CIR. R. 35, the petition for rehearing en banc is

also DENIED.




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