                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                         REVISED NOVEMBER 3, 2005
                  IN THE UNITED STATES COURT OF APPEALS                October 27, 2005
                           FOR THE FIFTH CIRCUIT
                                                                   Charles R. Fulbruge III
                      _____________________________                        Clerk

                              No. 05 - 70010
                      _____________________________


                         GUY STEPHEN ALEXANDER,

                                                  Petitioner - Appellant,
                                    VERSUS


                     DOUG DRETKE, Director,
 Texas Department of Criminal Justice, Institutional Division,

                                                       Respondent - Appellee.

           __________________________________________________

              Appeal from the United States District Court
          for the Southern District of Texas, Houston Division
           ___________________________________________________

Before DAVIS, SMITH and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:*

      Petitioner Guy Stephen Alexander was convicted of capital

murder in Texas and sentenced to death.          Alexander filed a petition

for writ of habeas corpus in the District Court pursuant to 28

U.S.C. § 2254 which was dismissed.           Alexander now requests that

this Court issue a certificate of appealability (COA) pursuant to

28   U.S.C.   §   2253(c)   on   two   claims:   (1)    denial    of   right     to



      *
      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this opinion should not be published and is not precedent except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-
individualized sentencing by the trial court when it excluded

expert testimony; (2) ineffective assistance of counsel.    For the

following reasons, we grant Alexander’s application for COA on the

ineffective assistance of counsel (IAC) claim, but we deny a COA on

his remaining claim.

                                I.

     The Court of Criminal Appeals succinctly summarized the facts

in its direct appeal opinion as follows:

          Wilma Wofford, an elderly lady was murdered on the
     morning of January 24, 1989, in Houston. The deceased
     had suffered several lacerations to the head that were
     consistent with being struck by a blunt instrument.
     Portions of a broken brick were found near her body.
     Around the deceased’s neck was an electrical cord,
     another cord, and a cloth belt. Her death was a result
     of asphyxiation. The deceased’s automobile was missing.
     Other personal property missing from the residence
     included two rings and some silver coins, which were sold
     to a pawnshop. These items were sold by [Alexander] on
     January 24, 1989.      Police ultimately recovered the
     television and binoculars. Four fingerprints and three
     palm prints, all matching [Alexander’s] were found in the
     deceased’s premises. A blood-stained print of a tennis
     shoe, matching [Alexander’s] tennis shoe, was found on
     the floor of the deceased’s premises.

          On January 26, 1989, Officer Kenneth Broadis and two
     other officers of the Jackson County Sheriff’s Department
     in Mississippi observed [Alexander] in a fast food
     restaurant in Moss Point, Mississippi. [Alexander]
     appeared to be acting suspiciously. A short time later
     Officer Thomas Lamb of the Jackson County, Mississippi
     Sheriff’s Department was on patrol when he observed
     [Alexander] driving the deceased’s automobile in excess
     of the speed limit.     Lamb had been advised that the
     automobile was stolen and was being sought in connection
     with a homicide case in Houston, Texas. After a brief
     pursuit, Lamb pulled the vehicle over and apprehended
     [Alexander]. In [Alexander’s] possession were several of
     the deceased’s credit cards. In the automobile police


                                -2-
     discovered the deceased’s typewriter and a set of keys,
     one of which fit the deadbolt lock at the deceased’s
     home.

          On January 27, 1989, [Alexander] gave a written
     statement in which he admitted killing the deceased. In
     the statement he detailed exactly how he had murdered her
     and what property he had taken from her.               At
     [Alexander’s] trial the statement was read to the jury
     over [Alexander’s] objection.

     Alexander v. State, No. 70941, slip op. at 1-2.



     In August 1989, Alexander was convicted and sentenced to death

for the capital offense of murdering Wilma Wofford in the course of

committing or attempting to commit robbery. The Texas Court of

Criminal Appeals affirmed that judgment and the United States

Supreme Court denied certiorari. Subsequently, Alexander filed

petitions for state habeas relief which were denied.                 He then

sought federal habeas relief, which was also denied.

                                     II.

     Because Alexander filed his § 2254 petition for a writ of

habeas corpus after April 24, 1996 (the effective date of the

Antiterrorism    and   Effective     Death   Penalty   Act   (AEDPA)),    his

petition is     subject   to   the   procedures   imposed    by   AEDPA   and,

therefore, his appeal is governed by the COA requirements of § 2253

(c). Sterling v. Dretke,100 Fed.Appx. 239, 241 (5th Cir. 2004),

citing Slack v. McDaniel, 529 U.S. 473, 478 (2000).

     In order to receive a COA, Alexander must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C.A. §

                                      -3-
2253(c)(2).   Meeting   this   standard   “requires   a   petitioner   to

demonstrate that ‘reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to

deserve encouragement to proceed further’.” Sterling, 100 Fed.

Appx. at 242, citing Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). We evaluate petitioner’s application with the understanding

that “any doubts as to whether a COA should issue must be resolved

in [Alexander’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248

(5th Cir. 2000).

A.   Whether a COA should issue on Alexander’s claim that he was
     denied the right to individualized sentencing when the trial
     court refused to admit the expert testimony of Dr. James
     Marquart.


     At trial, the defense attempted to call Dr. Marquart as an

expert witness to testify on the inaccuracy of jury predictions of

future dangerousness and prison behavior. Marquart would have

testified that juries cannot predict with any accuracy the future

dangerousness of a capital murderer.      More particularly, he would

have stated that in 8 out of 10 cases where people are predicted to

be dangerous, they have no significant disciplinary problems, which

demonstrates that jurors err in the direction of predicting future

dangerousness. The prosecution objected to Dr. Marquart’s testimony

as irrelevant, because Dr. Marquart had not interviewed Alexander

and could offer no testimony about Alexander’s individual threat to



                                   -4-
society.      The trial court sustained the objection and excluded

Marquart’s testimony from the trial.        Alexander argues that the

evidence   was   proper   as   mitigating   evidence    and,   therefore,

exclusion of it from trial raises at least a debatable claim about

whether he was denied a constitutional right.

     In its Opinion on Denial of Habeas Corpus, the district court

found that the trial court did not err in excluding Marquart’s

testimony because the testimony would not have aided the jury in

answering the special issue as required by Texas law.             We are

persuaded by the district court’s conclusion that, where the law of

Texas requires the jury to make a finding of future dangerousness,

then an expert witness’ testimony criticizing that inquiry is

irrelevant. As the district court said,

          Although Marquart felt that a jury could not
     adequately conclude whether or not Alexander would be a
     future danger, Texas required the jury to engage in that
     analysis. Marquart’s testimony commented on Texas law,
     without addressing Alexander’s specific danger to
     society. His opinion of Texas law added nothing to the
     jury’s consideration of the special issues. See Green v.
     Johnson, 116 F.3d 1115, 1126 (5th Cir. 1997)(finding no
     error in the exclusion of Marquart’s “generalized
     critique of the accuracy of the future dangerousness
     prediction”).

DC Opinion, 6.

     The district court was clearly correct in denying relief on

this claim.    The district court’s analysis leaves nothing open for

debate among reasonable jurists on this issue.         We therefore deny

COA on this claim.



                                   -5-
B.   Whether a COA should issue on Alexander’s ineffective
     assistance of counsel claim during the sentencing phase.

     In order to prevail on a claim of ineffective assistance of

counsel, a petitioner must show (1) that counsel’s performance was

deficient and (2) that the deficiency prejudiced the defense.

Wiggins v. Smith, 539 U.S. 510, 521 (2003), citing Strickland v.

Washington, 466 U.S. 668, 687 (1984). A petitioner must demonstrate

that counsel’s performance “fell below an objective standard of

reasonableness” in order to establish a deficient performance.

Strickland, 466 U.S. at 688.

     In this case, Alexander’s claim stems from what he depicts as

trial counsel’s failure to adequately investigate his tumultuous

family and psychological background.           During the punishment phase,

Alexander’s trial attorneys presented the expert testimony of two

psychological witnesses - Dr. Walter Quijano and Dr. Sally Webster.

Additionally, according to trial counsel’s affidavits submitted to

the state habeas court, they interviewed “several” of Alexander’s

family   members,     (although    they    specifically        discuss   only

Alexander’s sister and his father). The attorneys’ affidavits

indicate that the father was somewhat unavailable and that the

sister’s view was compromised by her “position in the family.” The

attorneys   both    claim   to   have   been    unaware   of   any   evidence

regarding: “disturbed family origin; genetic susceptibility to drug

and alcohol dependency; orthopedic birth injury and subsequent

uncorrected   disability;    parental     medical    neglect;    significant


                                    -6-
psychological disorder in childhood; developmental intellectual

deficits and learning difficulties; peer isolation, alienation, and

rejection;     traumatic   sexual     exposure      and   precocious    onset   of

puberty; and inadequate parental supervision and structure” that

they failed to present. The state habeas court found that trial

counsel made a reasonable effort to investigate and present facts

for    mitigation   because      it   interviewed       Alexander,    his   family

members, and mental-health experts. The court also found that

Alexander and his family were not completely forthcoming with trial

counsel.

       Alexander argues that trial counsel failed to offer any

meaningful explanation of his family background or the difficulties

of    his   childhood.   Among    other       things,   Alexander    specifically

alleges that the following amount to ineffective assistance of

counsel on the part of his trial lawyers:

            (1) Allowing Alexander’s father’s testimony that
       Alexander had a “normal” family to go uncontested when
       there was readily discoverable evidence that Alexander’s
       father was homosexual, a situation which led to “ongoing
       strife” in Alexander’s family.

            (2) Not reviewing the family’s medical records,
       which would have demonstrated significant evidence of
       Alexander’s mother’s dependence on prescription
       medication   and  Alexander’s   significant   orthopedic
       impairments which led to his social isolation at school.

            (3) Failing to discuss and produce Alexander’s
       brother’s testimony that their father had a “mean streak”
       and was bad tempered.

            (4) Not discovering the substantial evidence of a
       severe psychological disorder in Alexander’s childhood.


                                        -7-
     This evidence could easily have been obtained through a review
     of Alexander’s school records. These records include, among
     other things, a history of transferring from school to school
     and a reported suicide attempt.

While counsel conducted considerable investigation designed to

discover mitigating evidence and produced substantual evidence

during the punishment phase, the Supreme Court has suggested that

a reasonable investigation involves consideration of such factors

as “medical history, educational history, employment and training

history, family and social history, prior adult and juvenile

correctional experience, and religious and cultural influences.”

Wiggins v. Smith, 539 U.S. 510, 524 (2003). Because we find that

reasonable jurists could debate whether or not additional evidence

of Alexander’s background was available to and accessible by trial

counsel and whether that evidence could have   influenced the jury

to not impose the death penalty, we grant a COA on Alexander’s

ineffective assistance of counsel claim.

     The clerk will establish a briefing schedule to allow the

parties to file supplemental briefs on this claim.

     COA granted in part and denied in part.




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