                                                                                       United States Court of Appeals
                                                                                                Fifth Circuit
                                                                                               F I L E D
                                                                                                April 29, 2003
                                                 In the
                                                                                          Charles R. Fulbruge III
                         United States Court of Appeals                                           Clerk
                                      for the Fifth Circuit
                                           _______________

                                             m 02-20650
                                           _______________




                                           EDWARD GREEN,

                                                                  Petitioner-Appellant,

                                                VERSUS

                                          JANIE COCKRELL,
                       DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                                   INSTITUTIONAL DIVISION,

                                                                  Respondent-Appellee.



                                 _________________________

                             Appeal from the United States District Court
                                 for the Southern District of Texas
                                           (01-CV-1270)
                                  _________________________



Before JONES, SMITH, and                                     Edward Green seeks a certificate of appeal-
  EMILIO M. GARZA, Circuit Judges.                        ability (“COA”) to challenge the denial of his
                                                          petition for writ of habeas corpus. Concluding
JERRY E. SMITH, Circuit Judge:*                           that he has failed to make a substantial show-

   *                                                         *
     Pursuant to 5TH CIR. R. 47.5, the court has               (...continued)
determined that this opinion should not be pub-           lished and is not precedent except under the limited
                                    (continued...)        circumstances set forth in 5TH CIR. R. 47.5.4.
ing of the denial of a constitutional right, we            evaluating whether Green has satisfied that re-
decline to grant a COA.                                    quirement, his arguments must be “viewed
                                                           through the lens of the deferential scheme laid
                      I.                                   out in 28 U.S.C. § 2254(d).” Barrientes, 221
   In 1992, Green shot and killed Edward Ha-               F.3d at 772.
den and Helen O’Sullivan during an attempted
robbery. In 1993, he was convicted of capital                  The claims for which Green requests a
murder and was sentenced to death. The Tex-                COA involve the allegedly ineffective assis-
as Court of Criminal Appeals affirmed his con-             tance of trial counsel during the punishment
viction and sentence. Green v. State, 912                  phase of his trial.3 Green contends that coun-
S.W.2d 189 (Tex. Crim. App. 1995), cert.                   sel failed to present mitigating evidence, spe-
denied, 516 U.S. 1021 (1996).                              cifically witness testimony expressing the opin-
                                                           ion that his violent conduct is related to his
    Green filed a state application for writ of            troubled upbringing and the absence of a sup-
habeas corpus, alleging that his trial counsel             portive family environment. Because these
was ineffective in failing to investigate and              claims were considered and rejected during
present certain mitigating evidence, particu-              state habeas proceedings, Green is entitled to
larly evidence that Green suffered from post-              federal habeas relief only if he can demonstrate
traumatic stress disorder (“PTSD”). The trial              that the state court’s decision is “contrary to,
court entered findings of fact and conclusions             or involved an unreasonable application of,
of law recommending that relief be denied.                 clearly established Federal law, as determined
Based on that recommendation, the Texas                    by the Supreme Court of the United States.”
Court of Criminal Appeals denied Green’s ap-
plication. Ex Parte Green, No. 48,502-01
(Tex. Crim. App. Mar. 28, 2001).

   On April 13, 2001, Green filed a federal
habeas petition based in part on the claims of                2
                                                               (...continued)
ineffective assistance. The district court de-             (5th Cir. 2000); Hughes v. Johnson, 191 F.3d 607,
nied relief and rejected Green’s request for a             612 (5th Cir. 1999) (citing Fuller v. Johnson, 114
COA. Green then filed his application for a                F.3d 491, 495 (5th Cir. 1997)).
COA with this court.
                                                              3
                                                                 In the habeas petition presented to the district
                        II.                                court, Green asserted additional claims of ineffec-
    To secure a COA, a petitioner must make                tive assistance, as well as claims that the state in-
a substantial showing of the denial of a consti-           troduced false testimony, suppressed exculpatory
                                                           evidence, and that the court improperly failed to
tutional right. 28 U.S.C. § 2253(c)(2). To
                                                           instruct the jury as to the possibility of life impris-
meet this standard, Green must demonstrate                 onment without parole as an alternative to the
that the district court’s rejection of his consti-         death penalty. In the brief supporting his request
tutional claims was debatable or in error.2 In             for a COA, however, Green fails to address these
                                                           claims. We address only those claims briefed, for
                                                           issues not raised in a request for a COA are
   2
       See Barrientes v. Johnson, 221 F.3d 741, 772        waived. Hughes, 191 F.3d at 613 (citation omit-
                                      (continued...)       ted).

                                                       2
28 U.S.C. § 2254(d)(1).4                                    sumption “that trial counsel rendered adequate
                                                            assistance and that the challenged conduct was
    To prevail on his claims of ineffective as-             the product of reasoned trial strategy.” Wil-
sistance, Green must establish both that coun-              kerson v. Collins, 950 F.2d 1054, 1065 (5th
sel’s performance was deficient and that he                 Cir. 1992) (citing Washington, 466 U.S. at
was prejudiced by the deficient performance.                690). Applying that standard, we conclude
Strickland v. Washington, 466 U.S. 668, 687                 that Green’s trial counsel did not render inef-
(1984). Deficiency is established if counsel’s              fective assistance and that the district court’s
performance fell below an objective standard                denial of relief is not debatable among jurists
of reasonableness. Id. at 687-88. In making                 of reason. Green therefore has failed to make
that determination, we apply a strong pre-                  a substantial showing of the denial of a consti-
                                                            tutional right and is not entitled to a COA.

   4
      Generally, a petitioner also may establish his                               A.
entitlement to habeas relief by demonstrating that             Green contends that his trial counsel ren-
the state court adjudication rested on “an unrea-           dered ineffective assistance by failing to inves-
sonable determination of the facts in light of the          tigate and present the testimony of Leonard
evidence presented in the State court proceeding.”          Cucolo and Darrel Sanders, counselors at the
28 U.S.C. § 2254(d)(2). The showing is a difficult          Texas Youth Council’s Giddings State School,
one, because “the state court’s factual determina-          where Green had been incarcerated as a sex
tions carry a presumption of correctness; to rebut          offender. Green presented affidavits in which
them, the petitioner must present clear and convinc-
                                                            Cucolo and Sanders detailed the testimony
ing evidence to the contrary.” Smith v. Cockrell,
                                                            they would have offered if called to testify.5
311 F.3d 661, 667 (5th Cir. 2002) (citing § 2254-
(e)(1)). In the context of a request for a COA,
however, the question is not whether Green has, in
                                                               5
fact, satisfied this demanding standard. See Mil-                The issues surrounding the belated production
ler-El v. Cockrell, 123 S. Ct. 1029, 1041-42                of these affidavits demonstrate the soundness of
(2003). Rather, we must determine whether the               our cautious approach to ineffective assistance
district court’s conclusion that he has failed to do        claims based on uncalled witnesses and undevel-
so is debatable. Id.                                        oped testimony. See, e.g., Evans v. Cockrell, 285
                                                            F.3d 370, 377 (5th Cir. 2002) (stating that com-
    Green contends that the affidavit proffered by          plaints of uncalled witnesses are disfavored be-
his trial counsel lacked specificity and that, conse-       cause allegations concerning what a witness would
quently, the state court’s factual findings were in-        have said are speculative); Lockhart v. McCotter,
sufficiently supported by the evidence submitted.           782 F.2d 1275, 1282 (5th Cir. 1986) (“Where the
He fails, however, to present any evidence that             only evidence of a missing witness’ testimony is
would tend to contradict the state court’s finding          from the defendant, this Court views claims of
that the affidavit was credible. Further, Green does        ineffective assistance with great caution.”). Green
not identify particular findings of fact that he            failed to produce affidavit support for his claims
believes are in error as a result of the court’s con-       until after the district court had ruled against him.
sideration of the affidavit. Given the absence of           When submitted, the affidavits did not accord with
any evidence of factual error, it is not even debat-        Green’s previous descriptions of the testimony the
able that Green’s conclusional allegations are in-          witnesses would have offered. The district court
sufficient to rebut the presumption of correctness          chose to consider these affidavits despite the
applicable to state court findings of fact.                                                         (continued...)

                                                        3
   The affidavits state the therapists’ shared           fective assistance.6 In his affidavit, Green’s
opinion that Green’s emotional and behavioral            counsel stated that he chose not to present
problems are attributable to the troubled cir-           additional testimony relating to Giddings, be-
cumstances surrounding his childhood and the             cause he did not believe it would be beneficial.
absence of a supportive family environment.              If that decision was made pursuant to an ade-
Green also argues that counsel’s failure ade-            quate investigation, it cannot serve as the basis
quately to prepare Ramon Campos, a third                 of an ineffective assistance claim.7 Therefore,
counselor from Giddings, to testify resulted in          to succeed on his claim, Green must establish
the omission of relevant mitigating evidence.            that the omission of the therapists’ testimony
Campos filed an affidavit describing the tes-            was a consequence of trial counsel’s deficient
timony he would have given had he been ade-              investigation in preparation for the punishment
quately prepared, relating to the emotional              phase.
problems Green developed as a result of the
absence of family support and guidance.                     Counsel “has a duty to make a reasonable
                                                         investigation of the defendant’s case or to
   As the district court noted, this is not a case       make a reasonable decision that a particular in-
in which trial counsel failed to present any             vestigation is unnecessary.” Ransom v. John-
punishment phase evidence. In fact, Green’s              son, 126 F.3d 716, 722 (5th Cir. 1997) (citing
attorney called several witnesses during the             Washington, 466 U.S. at 691). Green’s law-
punishment phase, including teachers, coaches,           yer submitted an affidavit in the state habeas
therapists, and family members. The proffered            proceedings detailing his efforts in preparing
testimony detailed various events from Green’s           and presenting mitigation evidence. That affi-
extremely troubled childhood, including the              davit reflects a thoroughgoing investigation in-
brutal murder of his father, his mother’s drug           to Green’s background radically different from
addiction, his confinement to the Giddings               the situation in cases in which we have found
State School, and the resulting absence of a
stable home life.

    Several of the witnesses from Giddings tes-
tified that in their interaction with Green, he
                                                            6
displayed a good attitude and had not been a                  Salazar v. Estelle, 547 F.2d 1226, 1227 (5th
discipline problem. Despite the introduction of          Cir. 1977); cf. Gray v. Lucas, 677 F.2d 1086,
this considerable mitigation evidence, Green             1093 n.5 (5th Cir. 1982) (“While a lawyer’s failure
contends that counsel’s failure to present the           to investigate a witness who has been identified as
therapists’ testimony, and adequately to pre-            crucial may indicate an inadequate investigation,
pare Campos to testify, rendered counsel’s               the failure to investigate everyone whose name
performance constitutionally deficient.                  happens to be mentioned by the defendant does not
                                                         suggest ineffective assistance.”).
   A strategic or tactical decision not to call             7
                                                              Smith, 311 F.3d at 668 (“So long as counsel
particular witnesses does not constitute inef-           made an adequate investigation, any strategic de-
                                                         cisions made as a result of that investigation fall
                                                         within the wide range of objectively reasonable
   5
    (...continued)                                       professional assistance.” (citation and internal quo-
absence of any explanation for their untimeliness.       tation marks omitted)).

                                                     4
counsel’s investigation to be deficient.8                    der, however, counsel’s failure to present evi-
                                                             dence relating to PTSD does not satisfy the
                        B.                                   deficiency prong of Washington.
   Green contends that his trial counsel was
ineffective in failing to introduce evidence on                 Although counsel did not observe any in-
the effects of PTSD. His complaint centers on                dications of PTSD during trial and did not be-
counsel’s failure to introduce a psychological               lieve that Green’s background was consistent
expert witness and to elicit from Campos cer-                with PTSD, he did attempt to obtain a psycho-
tain testimony pertaining to PTSD.9 Green has                logical evaluation of Green, who then refused
entirely failed to present any evidence that he              to submit to the evaluation. As a general rule,
suffers from PTSD, other than the Campos af-                 a defendant cannot block his attorney’s efforts
fidavit and his own unsubstantiated assertions.              and later claim the resulting performance was
Even assuming Green suffers from the disor-                  constitutionally inadequate.10 Green argues,
                                                             however, that his refusal to cooperate did not
                                                             free counsel of the obligation to perform a
   8
      See, e.g., Neal v. Puckett, 286 F.3d 230 (5th          thorough investigation.
Cir. 2002) (per curiam) (en banc), cert. denied,
123 S. Ct. 963 (2003); Bouchillon v. Collins, 907               Although a defendant’s failure to cooperate
F.2d 589 (5th Cir. 1990); Profitt v. Waldron, 831            does not absolve trial counsel of the duty to
F.2d 1245 (5th Cir. 1987); Beavers v. Balkcom,
                                                             make a reasonable investigation, the scope of
636 F.2d 114 (5th Cir. Unit B Feb. 1981). Much
of the omitted mitigating evidence in these cases
                                                             that duty may be limited by a lack of coopera-
was missed as a result of counsel’s failure to in-           tion.11 In the case of psychological examina
vestigate the defendants’ backgrounds in mental
institutions and prisons. Id. at 691. The trial coun-
                                                                10
sel in Neal, for instance, failed to discover a sub-                See Autry v. McKaskle, 727 F.2d 358, 361
stantial amount of mitigating evidence, including            (5th Cir. 1984) (rejecting claim of ineffective as-
evidence of brutal treatment at the hands of an              sistance of counsel for failure to investigate and
alcoholic father, difficult conditions during confine-       present evidence at punishment where defendant
ment in a mental institution, and sexual abuse               had instructed his attorney not to fight death pen-
while petitioner was in prison. 239 F.3d at 689. In          alty); Amos v. Scott, 61 F.3d 333, 348-49 (5th Cir.
the instant case, by contrast, in addition to inter-         1995) (defendant not prejudiced by counsel’s fail-
viewing Green and certain family members, trial              ure to investigate and present mitigating evidence
counsel subpoenaed Green’s complete Texas Youth              where defendant had instructed counsel not to pre-
Council records, including his records from Gid-             sent punishment-phase evidence).
dings State School, and interviewed employees
                                                                11
from Giddings, including teachers, staff, and                      Bell v. Watkins, 692 F.2d 999, 1009 n.11
coaches.                                                     (5th Cir. 1982) (citing Gray, 677 F.2d at 1094);
                                                             see also Randle v. Scott, 43 F.3d 221, 225 (5th
   9
      Campos contends, in his affidavit, that he             Cir. 1995) (holding that attorney’s failure to in-
would have testified that Green suffers from PTSD            vestigate did not constitute ineffective assistance,
as a consequence of his troubled childhood and that          at least in part because defendant had failed to
his violent behavior is related to that disorder. As         provide relevant information); Wiley v. Puckett,
the district court pointed out, however, Campos has          969 F.2d 86, 99 (5th Cir. 1992) (holding that at-
never been qualified as an expert competent to               torney’s investigation into mitigating evidence may
testify with respect to PTSD.                                                                       (continued...)

                                                         5
tions, a defendant’s refusal to cooperate effec-            fers from PTSD.13 We review for abuse of dis-
tively prevents investigation, rendering coun-              cretion the denial of investigative assistance.
sel’s decision not to pursue the matter further             See Hill v. Johnson, 210 F.3d 481, 487 (5th
reasonable. Green’s refusal to submit to an                 Cir. 2000).14 Under § 848(q)(4)(B) and (q)(9),
evaluation therefore precludes him from claim-              the district court may authorize funding for
ing that counsel was ineffective in failing to              expert or investigatory assistance if the de-
present evidence regarding PTSD.12                          fendant shows both indigence and that the ex-
                                                            pert assistance requested is “reasonably neces-
                       III.                                 sary for the representation of the defendant.”15
    Related to Green’s claim of ineffective as-
sistance is his contention that the district court             There is no dispute with respect to Green’s
abused its discretion in refusing his request for           indigence; the question turns on his failure to
investigative funds filed pursuant to 21 U.S.C.             establish that the expert assistance requested
§ 848(q)(4)(B) and (q)(9). Green sought these               was reasonably necessary to his representation.
funds primarily for the purpose of retaining a              To demonstrate that assistance is reasonably
psychologist able to determine whether he suf-              necessary, a defendant must couple his request
                                                            with a viable constitutional claim that is not
                                                            procedurally barred. See Fuller, 114 F.3d at
   11
     (...continued)
reasonably be limited when defendant fails to call
witnesses to attorney’s attention).                            13
                                                                  In addition to funds for expert psychological
                                                            assistance, Green’s original motion in the district
   12
       See Clanton v. Bair, 826 F.2d 1354, 1358             court requested funding to locate and interview var-
(4th Cir. 1987) (“When a seemingly lucid and ra-            ious individuals alleged to have information per-
tional client rejects the suggestion of a psychiatric       taining to his claims. Green mentions these ad-
evaluation and there is no indication of a mental or        ditional funding requests only in passing and states
emotional problem, a trial lawyer may reasonably            merely that the requests are governed by the same
forego insistence upon an investigation.”).                 legal standards as is his request for psychological
Although this case differs slightly from Clanton in         expert assistance. He makes no attempt to describe
that trial counsel was aware of some of the difficult       the testimony these individuals would offer or how
circumstances of Green’s childhood, counsel did             such testimony would support his claim of ineffec-
not observe any indications of PTSD during trial            tive assistance. He therefore has waived these ad-
nor did he believe that Green’s background was              ditional claims as a result of his failure adequately
consistent with PTSD. As we have said, counsel’s            to brief the issue. Lookingbill v. Cockrell, 293
failure to discover and present evidence of a crimi-        F.3d 256, 263 (5th Cir. 2002), cert. denied, 123
nal defendant’s alleged mental disorder does not            S. Ct. 878 (2003).
constitute ineffective assistance in the absence of
“some indication that mental impairment might                  14
                                                                  A COA is not required to appeal the denial of
prove a promising line of defense.” Byrne v. But-           relief under § 848(q)(4)(B). See Hill, 210 F.3d at
ler, 845 F.2d 501, 513 (5th Cir. 1988); see also            487 n.2 (citing Sterling v. Scott, 57 F.3d 451, 454
Wiley, 969 F.2d at 100 (“Because nothing alerted            n.3 (5th Cir. 1995)).
[trial counsel] to the possibility of mental impair-
                                                               15
ment as a mitigating factor, we find the decision                28 U.S.C. § 848(q)(4)(b), (q)(9); Hill, 210
not to obtain a psychiatric evaluation entirely             F.3d at 487 (citing Fuller v. Johnson, 114 F.3d
reasonable.”).                                              491, 502 (5th Cir. 1997)).

                                                        6
502.

    Even if Green were able to secure a psy-
chological evaluation establishing that he suf-
fers from PTSD, however, it would not affect
the disposition of his ineffective assistance
claim. As we have explained, trial counsel’s
failure to introduce evidence of Green’s al-
leged affliction with PTSD did not constitute
ineffective assistance of counsel, especially in
light of the fact that Green refused to cooper-
ate with counsel’s attempts to obtain a psycho-
logical evaluation at the time of trial. If it is
now established that Green suffers from
PTSD, counsel’s performance would not
thereby be retroactively rendered deficient.

   In light of the absence of any relationship
between the expert assistance sought and a vi-
able constitutional claim, the district court did
not abuse its discretion in concluding that a
psychological expert was not reasonably
necessary.

   The application for a COA is DENIED.




                                                    7
