    Case: 16-70022    Document: 00513946066     Page: 1   Date Filed: 04/10/2017




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                 No. 16-70022                         FILED
                                                                   April 10, 2017
                                                                   Lyle W. Cayce
                                                                        Clerk

KWAME A. ROCKWELL,

                                           Petitioner–Appellant,

versus

LORIE DAVIS, Director,
 Texas Department of Criminal Justice, Correctional Institutions Division,

                                           Respondent–Appellee.




                Appeal from the United States District Court
                     for the Northern District of Texas




Before JONES, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Kwame Rockwell seeks a certificate of appealability (“COA”) to challenge
the denial of habeas corpus relief. Because reasonable jurists would not debate
that the district court acted properly in denying Rockwell’s claims, we deny his
application for a COA.
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                                      No. 16-70022
                                             I.
      A Texas jury convicted Rockwell of murdering a gas-station clerk, Daniel
Rojas, in the course of a robbery. The jury sentenced Rockwell to death. The
Texas Court of Criminal Appeals affirmed the conviction and death sentence. 1
Rockwell filed a state petition for writ of habeas corpus, which was denied. 2
He filed a federal habeas petition, which the district court denied. 3

      “A state prisoner whose petition for a writ of habeas corpus is denied by
a federal district court does not enjoy an absolute right to appeal. Federal law
requires that he first obtain a COA from a circuit justice or judge.” Buck v.
Davis, 137 S. Ct. 759, 773 (2017) (citing 28 U.S.C. § 2253(c)(1)). “A COA may
issue ‘only if the applicant has made a substantial showing of the denial of a
constitutional right.’” Id. (quoting 28 U.S.C. § 2253(c)(2)). “Until the prisoner
secures a COA, the Court of Appeals may not rule on the merits of his case.”
Id. (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).

      “The COA inquiry . . . is not coextensive with a merits analysis. At the
COA stage, the only question is whether the applicant has shown that ‘jurists
of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.’” Id. (quoting Miller-El, 537 U.S.
at 327). Federal courts cannot grant habeas relief if a claim was adjudicated
on the merits in state court unless the state-court decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as



      1  That court’s opinion includes a thorough discussion of the facts. See Rockwell v.
State, No. AP-76,737 slip op., 2013 WL 6529575 (Tex. Crim. App. Dec. 11, 2013) (not desig-
nated for publication), cert. denied, 134 S. Ct. 2724 (2014).
      2  See Ex Parte Rockwell, No. WR-80,232–01 slip op. (Tex. Crim. App. Dec. 17, 2014)
(per curiam) (not designated for publication), cert. denied, 136 S. Ct. 36 (2015).
      3   See Rockwell v. Davis, 4:14-CV-1055-O, 2016 WL 4398378 (N.D. Tex. Aug. 18, 2016).
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                                        No. 16-70022
determined by the Supreme Court of the United States” or “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). 4

       Rockwell claims that reasonable jurists would debate (1) whether his
trial counsel’s decision not to present evidence that he suffers from schizo-
phrenia constitutes ineffective assistance of trial counsel (“IATC”), (2) whether
his trial counsel’s decision not to present evidence of his steroid use constitutes
IATC, (3) whether he is eligible for the death penalty under Atkins v. Virginia,
536 U.S. 304 (2002), in light of his purported mental illness, and (4) whether
Texas’s death-penalty statute unconstitutionally forbids juries from consider-
ing mitigating evidence. The state habeas court and the district court rejected
each of these claims. 5

                                               II.
                                               A.
       Rockwell first brings two IATC claims, on which he must show “both that
counsel performed deficiently and that counsel’s deficient performance caused


       4In deciding whether to grant a COA, we engage in “an overview of the claims in the
habeas petition and a general assessment of their merits,” Miller-El, 537 U.S. at 336, but
“without ‘full consideration of the factual or legal bases adduced in support of the claims.’”
Buck, 137 S. Ct. at 773 (quoting Miller-El, 537 U.S. at 336).
       5 Rockwell also asserts that the state habeas court’s failure to adhere to Texas criminal
procedural laws deprived him of due process. But “[i]t is well-settled that ‘infirmities in state
habeas proceedings do not constitute grounds for federal habeas relief.’” Henderson v. Cock-
rell, 333 F.3d 592, 606 (5th Cir. 2003) (quoting Duff-Smith v. Collins, 973 F.2d 1175, 1182
(5th Cir. 1992)).
        Rockwell additionally claims that the alleged procedural deficiencies deprive the state
habeas court’s findings of fact and conclusions of law of the deference due under Section 2254.
But because our precedent does not require a full and fair hearing, see Valdez v. Cockrell,
274 F.3d 941, 951 (5th Cir. 2001), and because the record reflects that Rockwell had ample
opportunity to “develop his claims” before the state habeas court, see Tercero v. Stephens,
738 F.3d 141, 148 (5th Cir. 2013), reasonable jurists would not debate whether the district
court properly applied Section 2254 deference in its review of the state habeas court’s findings
of fact and conclusions of law.
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                                      No. 16-70022
him prejudice.” Buck, 137 S. Ct. at 775 (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). “Strickland’s first prong sets a high bar.” Id. 6 Trial
counsel is “strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.”
Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (citation and internal quotation
marks omitted). In federal habeas proceedings, a petitioner must also show
that “the state court’s application of the Strickland standard was unreasona-
ble.” Harrington v. Richter, 562 U.S. 86, 101 (2011).

                                             1.
       Rockwell’s first claim is that his lawyers were ineffective because they
failed adequately to investigate his purported schizophrenia and present evi-
dence of it to the jury. Rockwell began exhibiting symptoms of mental illness
shortly after his incarceration. Jail medical staff examined him and monitored
his symptoms. Ultimately, Rockwell was diagnosed with schizophrenia and
was prescribed Haloperidol, an anti-psychotic drug.

       Trial counsel chose not to highlight those facts at sentencing but,
instead, focused on Rockwell’s character. 7 Jurists of reason could not debate
that that decision met the standard for effective representation.

       Over the course of the litigation, trial counsel retained several mental-
health professionals to examine Rockwell. 8 Those experts either found evi-
dence that Rockwell was exaggerating his symptoms, or they failed to find


       6 See Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (“Surmounting Strickland’s high
bar is never an easy task.”).
       7Trial counsel called 52 witnesses to testify on Rockwell’s behalf during the sentenc-
ing phase.
       8 See Smith v. Cockrell, 311 F.3d 661, 676–77 (5th Cir. 2002), overruled on other
grounds by Tennard v. Dretke, 542 U.S. 274 (2004) (“Counsel should be permitted to rely upon
the objectively reasonable evaluations and opinions of expert witnesses without worrying
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                                       No. 16-70022
evidence that he suffered from schizophrenia. 9 Their findings comported with
the evidence trial counsel gathered from interviewing Rockwell and his family
members, friends, and acquaintances.

       Even the two mental-health experts whom Rockwell cites favorably, psy-
chologist Dr. Holly Miller and psychiatrist Dr. Michael Fuller, found evidence
that Rockwell was malingering. If trial counsel had portrayed Rockwell as
mentally ill, the prosecution would have presented evidence of such apparent
malingering. Moreover, Rockwell’s suggested approach would have made dam-
aging information discoverable, including information about his past violent
acts. 10

       The state habeas court rejected the claim of failure to investigate and
present evidence of schizophrenia. No reasonable jurist would find the district
court’s assessment of this claim debatable or wrong. 11



that a reviewing court will substitute its own judgment, with the inevitable hindsight that a
bad outcome creates, and rule that his performance was substandard for doing so.”).
       9  Trial counsel retained a psychologist, Dr. Kelly Goodness, who reported that “[a]ll
mental health professionals worth anything have identified Rockwell as malingering [mental
illness]. It would only be more hurtful than helpful to have mental health testimony.” Trial
counsel retained a clinical psychologist and neuropsychologist, Dr. Michael Chafetz, who
found some indications of psychosis but also reported that “this does not fit the usual symp-
tomology, and there is some mild evidence of over-reporting.” At the urging of the state trial
court, psychologist Dr. Antoinette McGarrahan also examined Rockwell and reported that
his supposed hallucinations “were all highly suspect.” Jail psychiatrist Dr. Xiaoyan Wu ex-
amined him as well and reached the same conclusion.
        That said, not all of the mental-health professionals who examined Rockwell found
evidence that he was over-reporting his symptoms. Trial counsel retained a forensic psychol-
ogist, Dr. Barry Norman, to determine whether Rockwell was competent to stand trial. Dr.
Norman did not find evidence of over-reporting. He also determined that though Rockwell
“displayed no evidence of a disorder which would significantly impair his current understand-
ing of reality,” he may have been suffering from adjustment disorder.
       For example, the prosecution could have learned that Rockwell once choked a
       10

woman until she lost consciousness.
       11 As noted above, Rockwell must show that trial counsel’s representation was not only
deficient but also prejudiced Rockwell’s defense—and that the state trial court’s rulings on
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                                       No. 16-70022
                                             2.
       Rockwell’s second claim is that his lawyers were ineffective because they
did not adequately investigate his steroid use or present evidence of it to the
jury. Trial counsel retained Dr. Dwain Fuller, a forensic toxicologist, for advice
on whether to present evidence of steroid use. Fuller advised against it, ex-
plaining that steroids do not cause people to commit the sorts of crimes that
Rockwell committed. That advice, combined with concerns that Rockwell’s
suggested witnesses would be subject to devastating cross-examination and
that information about his use of illegal steroids would undermine the
defense’s character arguments, convinced counsel not to pursue the steroid
theory.

       Counsel could have retained a more supportive expert but was not re-
quired to do so. 12 Nor was counsel required to call witnesses to testify about
the effect steroids may have had on Rockwell’s behavior. Accordingly, jurists
of reason could not debate the district court’s decision to defer to the state
habeas court’s ruling on this claim. 13

                                             B.
       Rockwell’s third claim is that Atkins bars states from executing mentally
ill persons. The state habeas court’s rejection of this claim was reasonable. In
Atkins, 536 U.S. at 320–21, the Court held that executing “mentally retarded”
persons violates the Eighth Amendment’s prohibition on “cruel and unusual”


these matters were unreasonable. Because we find that the state habeas court reasonably
held that trial counsel’s decision not to pursue the mental-illness theory did not constitute
deficient representation, we do not need to reach the prejudice prong of the Washington test.
       12See Perry v. Quarterman, 314 F. App’x 663, 668 (5th Cir. 2009) (explaining that trial
counsel is not required to “shop for an expert”).
       13 Because the state habeas court reasonably held that trial counsel’s decision not to
pursue the steroid theory was not deficient representation, we do not need to reach the pre-
judice prong of the Washington test.
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                                       No. 16-70022
punishment. Nothing in Atkins, however, bars states from executing those
who are mentally ill, and “Fifth Circuit precedent . . . forecloses” the notion
“that the Eighth Amendment prohibits . . . execution [of the] mentally ill.”
Mays v. Stephens, 757 F.3d 211, 219 (5th Cir. 2014). 14 The state habeas court
did not misapply Supreme Court precedent by refusing to extend Atkins to
Rockwell’s case, nor did it violate any other clearly established federal law. No
reasonable jurist would debate this conclusion.

                                             C.
       Finally, Rockwell claims that a Texas statute unconstitutionally bars
juries from considering mitigating evidence that does not reduce a defendant’s
“moral blameworthiness.” See TEX. CODE CRIM. PROC. art 37.071, § 2(f)(4). We
have rejected similar arguments multiple times. 15 The statute does not uncon-
stitutionally restrict the mitigating evidence that Texas juries are allowed to
consider. In fact, the jury instructions required the jury to “consider all evi-
dence admitted at the guilt or innocence stage and the punishment stage,” a
line that comes directly from the statute. See id. § 2(d)(1). No reasonable jurist
would debate the district court’s ruling on this claim.

       The application for a COA is DENIED.




        Execution of the mentally ill is carefully distinguished from execution of the insane.
       14

Mays, 757 F.3d at 219 n.24.
       15See, e.g., Blue v. Thaler, 665 F.3d 647, 665–66 (5th Cir. 2011); Beazley v. Johnson,
242 F.3d 248, 260 (5th Cir. 2001).
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