     Case: 12-70033       Document: 00512210481         Page: 1     Date Filed: 04/16/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 16, 2013
                                       No. 12-70033
                                                                           Lyle W. Cayce
                                                                                Clerk

MICHAEL JOHN YOWELL,

                                                  Petitioner-Appellant,

versus


RICK THALER, Director,
Texas Department Of Criminal Justice, Correctional Institutions Division,

                                                  Respondent-Appellee.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 5:07-CV-132-C




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Michael Yowell was convicted of murder and sentenced to death.1 We
reversed a grant of habeas corpus relief and remanded for consideration of two


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
        The background facts, procedural history, and standards are set forth in this court’s
previous opinion. See Yowell v. Thaler, 442 F. App’x 100 (5th Cir. 2011).
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                                        No. 12-70033

pretermitted claims that had been rejected on the merits in state habeas pro-
ceedings.2 On remand, the district court denied and dismissed with prejudice
both claims and denied a certificate of appealability (“COA”). Yowell seeks a
COA from this court. We deny his request.


                                               I.
      A COA is appropriate only if Yowell “has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district
court rejected Yowell’s claims on the merits, he “must demonstrate that reasona-
ble jurists” would find the district court’s decision “debatable or wrong.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000). Where, as here, both claims were denied
on the merits in state habeas proceedings, the proper question is “whether rea-
sonable jurists could debate the district court’s denial of habeas relief under the
deferential standard of review mandated by § 2254(d) and (e).” Feldman v.
Thaler, 695 F.3d 372, 377 (5th Cir. 2012).
      Under § 2254(d), the district court should have denied habeas relief unless
the state court’s adjudication (1) “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or (2) “resulted in a deci-
sion that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). To meet
that difficult standard, Yowell was required to show that the state habeas court’s
decision was “not only erroneous, but objectively unreasonable.” Yarborough v.
Gentry, 540 U.S. 1, 5 (2003).




      2
          Id. at 106 (remanding “for the court to address only those pretermitted issues”).

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                                  No. 12-70033

                                        II.
                                         A.
      At trial, the defense entered over 800 pages of medical records into evi-
dence and called Dr. Philip Davis, a psychologist, to highlight important infor-
mation regarding Yowell’s mental health history. The court did not allow Davis
to interpret those records or give an opinion as to Yowell’s legal insanity at the
time of the murders. According to Yowell, the court excluded the testimony as
hearsay. He alleged in his habeas petition that his trial counsel rendered inef-
fective assistance in failing to elicit the doctor’s expert opinion via unobjection-
able hypothetical questions.
      The state habeas court found that Davis was unable to render an opinion
as to whether Yowell was insane at the time of the murders and that Davis was
not an expert on future dangerousness. Davis testified for two hours, highlight-
ing the most important information in the medical records for the jury, as he had
discussed with defense counsel before trial. Because Yowell failed to set forth
what hypothetical questions should have been asked or what the answers would
have been, the state court denied habeas relief; Yowell failed to establish either
deficient performance or prejudice.
      The district court held that that conclusion was reasonable and consistent
with federal law. Yowell’s assertions regarding hypothetical questions continued
to be conclusional and speculative. Also, Davis testified that he could not render
an opinion as to Yowell’s sanity. Yowell could not, therefore, demonstrate preju-
dice from counsels’ failure to ask hypothetical questions. Furthermore, the state
court limited Davis’s testimony not because of hearsay but because Davis had
not examined Yowell and had not been designated as such an expert witness,
which was a fully informed strategic decision by counsel. Yowell, 442 F. App’x
at 102 & n.1.
      On appeal, Yowell does not criticize the district court’s conclusion that fail-

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                                        No. 12-70033

ing to ask hypothetical questions was not ineffective assistance. Instead, he
attempts to resurrect a previously dismissed argument, which he did not appeal,
that his counsel were ineffective in failing to give notice of Davis’s testimony. As
the state points out, that claim is not properly before us, because it is beyond the
scope of our limited remand. Yowell’s failure to obtain a COA on the issue when
it was dismissed precludes us from considering it now.3
       The district court’s conclusion—that the state court’s adjudication was not
objectively unreasonable—is not reasonably debatable. We have consistently
held that conclusional and speculative allegations of ineffective assistance are
not grounds for habeas relief.4 Furthermore, it is not reasonably debatable that
Davis’s “admi[ssion] at trial that he was unable to render an opinion as to Yow-
ell’s sanity” would “preclude[] any prejudice regarding counsel’s alleged failure”
to elicit such an opinion through hypothetical questions.
       Yowell also asserted in his petition that his trial counsel were ineffective
in failing to re-offer Davis’s testimony at the punishment phase. The state
habeas court found that the medical records, highlighted by Davis during the
guilt/innocence stage, presented a sympathetic portrait of Yowell’s background.
Trial counsel did not render ineffective assistance, the state court concluded, in
failing to present similar evidence during the punishment phase, nor did their
failure prejudice Yowell.
       The district court held that the state habeas court’s determination was not
objectively unreasonable. “In Texas, ‘[t]here is no requirement that evidence


       3
         See Carty v. Thaler, 583 F.3d 244, 266 (5th Cir. 2009) (citing 28 U.S.C. § 2253(c); Son-
nier v. Johnson, 161 F.3d 941, 946 (5th Cir.1998)).
       4
        E.g., Kinnamon v. Scott, 40 F.3d 731, 734–35 (5th Cir. 1994) (refusing to grant relief
on conclusional and speculative claims of ineffective assistance); Barnard v. Collins, 958 F.2d
634, 642 n.11 (5th Cir. 1992) (holding that conclusional allegations of ineffective assistance
were without merit “[i]n the absence of a specific showing of how these alleged errors and
omissions were constitutionally deficient, and how they prejudiced his right to a fair trial”).

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                                      No. 12-70033

admitted at guilt/innocence be re-offered to be considered at punishment.’”5
“Because the defense introduced mitigating evidence during trial, we must
assume, as the state habeas court did, that the jury considered it during the
punishment phase, especially in light of the fact that Yowell’s attorney referred
to the medical records during his closing statement.” Id. The district court’s
conclusion is not reasonably debatable.


                                            B.
       In his petition, Yowell also argued that he was entitled to relief because
his appellate counsel was ineffective in failing to raise on appeal his trial coun-
sels’ failure to elicit Davis’s opinion through hypothetical questioning. The state
habeas court denied relief, because Yowell had failed to establish why appellate
counsel acted as he did or to demonstrate that Yowell would have prevailed on
appeal. The district court denied relief because (1) Yowell had failed to show
that the state court’s determination was objectively unreasonable and
(2) because he could not demonstrate that, had appellate counsel raised his claim
on appeal, the conviction would have been reversed, much less that counsel’s
failure resulted in the proceedings’ being fundamentally unfair or unreliable.
See Goodwin v. Johnson, 132 F.3d 162, 174 (5th Cir. 1997).
       Yowell fails to mention this issue in his request for COA and accompany-
ing brief, so he has abandoned it as a ground for a COA. See Trevino v. Johnson,
168 F.3d 173, 181 n.3 (5th Cir. 1999). Furthermore, because appellate counsel
was under no obligation to raise every nonfrivolous claim, see Jones v. Barnes,
463 U.S. 745, 753–54 (1983), the district court’s conclusion is not reasonably
debatable.
       The request for a COA is DENIED.

       5
       Yowell, 442 F. App’x at 105 (quoting Buchanan v. State, 911 S.W.2d 11, 13 (Tex. Crim.
App. 1995) (second alteration in original)).

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