     Case: 18-70015        Document: 00514995085   Page: 1   Date Filed: 06/13/2019




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

                                    No. 18-70015                       FILED
                                                                   June 13, 2019
                                                                  Lyle W. Cayce
DEMETRIUS DEWAYNE SMITH,                                               Clerk

                Petitioner–Appellee, Cross-Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                Respondent–Appellant, Cross-Appellee.




                    Appeals from the United States District Court
                         for the Southern District of Texas


Before CLEMENT, OWEN, and HAYNES, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Demetrius Dewayne Smith was convicted of capital murder in Texas
state court and sentenced to death. The state court’s judgment was affirmed
on direct appeal, and Smith’s state habeas petition was denied. In this federal
habeas proceeding, the federal district court held that the Texas Court of
Criminal Appeals’ application of Witherspoon v. Illinois 1 and its progeny was
unreasonable because, the district court concluded, the state trial court
violated Smith’s constitutional right to an impartial jury under the Eighth and



      1   391 U.S. 510 (1968).
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                                    No. 18-70015
Fourteenth Amendments when it excluded a member of the venire for having
moral, conscientious, or religious objections to the death penalty. Respondent
Lorie Davis (to whom we will refer as the State) appeals. We reverse the
district court’s judgment to the extent that it conditionally grants habeas relief,
and we otherwise affirm the district court’s judgment.
                                           I
      Smith was convicted by a jury in June 2006 of a capital offense for the
murders of Tammie White, who was the mother of three, and her eleven-
year-old daughter, Kristina White. 2 The facts regarding these brutal killings
are set forth briefly in the opinion of the Texas Court of Criminal Appeals
(TCCA) on direct appeal, 3 and we will not recount them here.
      Based upon the jury’s answers to the special issues submitted in the
punishment phase, the trial court sentenced Smith to death. 4 Appeal to the
TCCA was automatic, 5 and Smith presented numerous points of error. 6 The
TCCA affirmed Smith’s conviction and sentence. 7 The United States Supreme
Court denied certiorari. 8
      Smith then filed an application for a writ of habeas corpus in Texas state
court. 9 He presented nine grounds for relief. 10 After conducting an evidentiary
hearing, the state trial court adopted the State’s proposed findings of fact. 11




      2 Smith v. State, 297 S.W.3d 260, 264-65 (Tex. Crim. App. 2009).
      3 Id. at 265.
      4 Id. at 264; ROA.7455-56.
      5 TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(h) (West Supp. 2018).
      6 Smith, 297 S.W.3d at 264.
      7 Id. at 278.
      8 Smith v. Texas, 559 U.S. 975 (2010).
      9 ROA.5507.
      10 ROA.5511-13.
      11 ROA.7482-83, 7455.



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The TCCA adopted the trial court’s findings of fact and all but one of its
conclusions of law and denied relief. 12
      In his habeas petition in federal court, Smith set forth five claims for
relief: (1) he was denied an impartial jury when the trial court dismissed
potential jurors Patricia Cruz and Matthew Stringer on the basis that they had
moral, conscientious, or religious objections to the death penalty, 13 (2) the
State’s use of disciplinary records from his previous incarcerations violated the
Confrontation Clause of the Sixth Amendment, 14 (3) his trial counsel provided
ineffective assistance by failing to investigate mitigating evidence, 15 (4) trial
counsel was ineffective because he failed to bring evidence to the court’s
attention that would have raised a doubt as to Smith’s competency to stand
trial, 16 and (5) under evolving standards of decency, executing the severely
mentally ill violates the Eighth Amendment. 17
      The federal district court conditionally granted relief based on Smith’s
first claim and ordered the State to release him unless it either convenes a new
sentencing hearing or imposes a sentence other than death. 18 The court denied
relief on all other grounds and did not issue a certificate of appealability
(COA). 19
      The State appeals, arguing that the district court did not accord the
deference due to the TCCA’s decision under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) regarding the dismissal of jurors for cause.
Smith counters that the district court’s ruling regarding the removal of



      12 ROA.5719.
      13 ROA.143, 163-77.
      14 ROA.143-44, 177-84.
      15 ROA.144, 184-209.
      16 ROA.145, 209-12.
      17 ROA.145, 212-53.
      18 ROA.461.
      19 ROA.461.

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Matthew Stringer from the venire was correct. Alternatively, Smith urges us
to affirm the district court’s judgment on other grounds: (1) trial counsel
provided ineffective assistance by failing to conduct a reasonable sentencing
investigation, and (2) the Eighth and Fourteenth Amendments prohibit the
execution of the severely mentally ill. Smith initially urged an additional
ground for affirmance, which was that potential juror Patricia Cruz was
improperly excluded, but he abandoned that claim at oral argument. We may
affirm a district court’s judgment on any ground supported by the record, even
though Smith has not obtained a COA. 20
                                            II
      At oral argument, Smith for the first time asserted that this court lacks
subject matter jurisdiction. Smith contends that 28 U.S.C. § 2253 requires the
party seeking relief to obtain a COA before this court has subject matter
jurisdiction over an appeal. Under § 2253(c)(1), “[u]nless a circuit justice or
judge issues a certificate of appealability, an appeal may not be taken to the
court of appeals from . . . the final order in a habeas corpus proceeding” in
which the prisoner is in state custody. 21 Federal Rule of Appellate Procedure
22(b)(3) provides that a COA is not required when a state or its representative
appeals. 22 The Supreme Court held in Gonzalez v. Thaler that a COA is a
jurisdictional prerequisite to our review. 23            Smith argues that Rule 22
impermissibly exempts the State from seeking a COA to obtain relief, contrary
to the plain text of § 2253.
       The Supreme Court indicated in Jennings v. Stephens that the State is
not required to obtain a COA in order to pursue an appeal after a federal


      20 See Jennings v. Stephens, 135 S. Ct. 793, 802 (2015).
      21 28 U.S.C. § 2253(c)(1)(A).
      22 FED. R. APP. P. 22(b)(3).
      23 565 U.S. 134, 142 (2012).



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                                     No. 18-70015
district court has granted habeas relief. The Supreme Court reasoned that
“[s]ection 2253(c) . . . provides that ‘an appeal may not be taken to the court of
appeals’ without a certificate of appealability, which itself requires ‘a
substantial showing of the denial of a constitutional right.’” 24 The Court then
explained that “[s]ection 2253(c) performs an important gate-keeping function,
but once a State has properly noticed an appeal of the grant of habeas relief,
the court of appeals must hear the case, and ‘there are no remaining gates to
be guarded.’” 25
      In Jennings, a Texas inmate had obtained habeas relief in federal district
court, and the State of Texas appealed to the Fifth Circuit. 26 The inmate asked
this court to affirm on grounds that had been rejected by the federal district
court, and we held that we lacked jurisdiction over the rejected theory because
the inmate failed to cross-appeal and failed to obtain a COA. 27 The Supreme
Court reversed and remanded for consideration of the alternate ground
asserted as a basis for upholding the district court’s judgment. 28 Therefore,
the issue that the Supreme Court decided was whether a state prisoner “was
permitted to pursue the theory that the District Court had rejected without
taking a cross-appeal or obtaining a certificate of appealability.” 29 Neither
party challenged this court’s jurisdiction to hear the state’s appeal. However,
like all courts, the Supreme Court must sua sponte consider its subject matter
jurisdiction. 30 The Supreme Court’s statement regarding the Fifth Circuit’s


      24  Jennings, 135 S. Ct. at 802 (quoting 28 U.S.C. § 2253(c)).
      25  Id. (quoting Szabo v. Walls, 313 F.3d 392, 398 (7th Cir. 2002)).
       26 Id. at 798.
       27 Id.
       28 Id. at 802.
       29 Id. at 796.
       30 Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (citing United States v. Cotton, 535

U.S. 625, 630 (2002)) (“When a requirement goes to subject-matter jurisdiction, courts are
obligated to consider sua sponte issues that the parties have disclaimed or have not
presented.”).
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                                             No. 18-70015
jurisdiction to hear the state’s appeal cannot be considered obiter dictum. If
the Fifth Circuit had not had jurisdiction over the state’s appeal, then its
judgment should and would have been vacated on that basis, the Supreme
Court would not have remanded the case to the Fifth Circuit for further
proceedings, and the Supreme Court would not have reached the question of
whether the inmate could assert claims rejected by the federal district court as
an alternative basis for affirming the district court’s judgment granting habeas
relief.
          Even if the discussion in Jennings were dicta, Smith’s argument not only
implicitly asserts that the Supreme Court has failed to recognize a
jurisdictional issue for more than twenty-three years, his argument is
inconsistent with the text of § 2253 for the reasons that the Court explained in
Jennings. Section 2253(c), read in its entirety and in context, reflects that the
COA requirements are intended to apply only to appeals by state or federal
prisoners and that they were not intended to apply to appeals by states or the
United States in habeas proceedings. Section 2253(c) applies to state inmates
as well as those confined in federal penal institutions, 31 and subsections
2253(c)(2) and (3) provide:
          (2) A certificate of appealability may issue under paragraph (1)
          only if the applicant has made a substantial showing of the denial
          of a constitutional right.
          (3) The certificate of appealability under paragraph (1) shall
          indicate which specific issue or issues satisfy the showing required
          by paragraph (2). 32
          The United States government, acting in its capacity to enforce federal
criminal laws, does not have “constitutional rights.” It would be non-sensical
to require a “substantial showing of the denial of a constitutional right” as a


          31   See 28 U.S.C. § 2253(c)(1).
          32   Id. § 2253(c).
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                                        No. 18-70015
prerequisite to an appeal by the United States in a habeas proceeding. If
Congress had intended to foreclose the right of the United States or the States
to appeal in habeas proceedings, it would have done so in a forthright manner.
“Congress, [the Supreme Court has] held, does not alter the fundamental
details of a regulatory scheme in vague terms or ancillary provisions—it does
not, one might say, hide elephants in mouseholes.” 33
         This circuit and our sister circuits are, as noted above, required to
examine our jurisdiction sua sponte. No circuit court has held that it lacks
jurisdiction in an appeal from a district court’s grant of habeas relief if the
state or federal government, as the case may be, failed to obtain a COA. Our
court and others have applied Rule 22(b)(3) in habeas proceedings. 34 In the
present case, a COA was not required for the State to appeal. 35
                                              III
         When a state court has adjudicated a claim on the merits, AEDPA
provides that federal courts cannot grant habeas relief unless the state court
proceedings resulted in a decision that (1) “was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by
the Supreme Court,” or (2) “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 36
The TCCA resolved the merits of each of Smith’s claims presently before our
court.


          Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001).
         33
         34See Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000) (citing FED. R. APP. P.
22(b)(3)) (“A certificate of appealability is not required because a representative of the state
is appealing the district court’s grant of habeas relief.”); see also Sutton v. Pfister, 834 F.3d
816, 819-20 (7th Cir. 2016); Jones v. Stephens, 541 F. App’x 399, 404 (5th Cir. 2013) (per
curiam); Wilson v. Beard, 589 F.3d 651, 657 (3d Cir. 2009); Lurie v. Wittner, 228 F.3d 113,
121 (2d Cir. 2000).
       35 See FED. R. APP. P. 22(b)(3).
       36 28 U.S.C. § 2254(d).



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       “Deciding whether a state court’s decision ‘involved’ an unreasonable
application of federal law or ‘was based on’ an unreasonable determination of
fact requires the federal habeas court to ‘train its attention on the particular
reasons—both legal and factual—why state courts rejected a state prisoner’s
federal claims.’” 37 With regard to Matthew Stringer’s dismissal as a potential
juror, “[t]his is a straightforward inquiry” because the TCCA on direct appeal
was “the last state court to decide [this] federal claim” and it “explain[ed] its
decision on the merits in a reasoned opinion.” 38
       Smith’s claims that his state court trial counsel was ineffective and that
it would violate the Eighth Amendment to execute a person who is mentally ill
were decided in the state habeas proceedings. 39 The TCCA expressly adopted
all of the state habeas trial court’s recommended findings and conclusions
relevant to those issues. 40 Accordingly, we will consider the state habeas trial
court’s findings and conclusions to be those of the TCCA.
                                              IV
       In Smith’s direct appeal to the TCCA, he argued that the state trial court
violated the Sixth and Fourteenth Amendments when it excused ten potential
jurors for cause. 41 The state trial court determined that these members of the
venire were substantially impaired because of beliefs or feelings about, or
objections to, the death penalty. 42 The TCCA’s opinion discussed the pertinent




       37 Wilson v. Sellers, 138 S. Ct. 1188, 1191-92 (2018) (quoting 28 U.S.C. §2254(d) and
Hittson v. Chatman, 135 S. Ct. 2126, 2126 (GINSBURG, J., concurring in denial of certiorari)).
       38 Id. at 1192; see Smith v. State, 297 S.W.3d 260, 274 (Tex. Crim. App. 2009) (rejecting

this claim on its merits); ROA.5511-13 (not bringing this claim in the state habeas
application).
       39 ROA.7476, 7478.
       40 ROA.5719.
       41 Smith, 297 S.W.3d at 267-68.
       42 See id. at 268-74.



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Supreme Court decisions, citing Witherspoon v. Illinois, 43 Adams v. Texas, 44
and Wainwright v. Witt, 45 and then considered the evidence in the record
regarding each person excluded from the venire. 46 As noted, only the TCCA’s
decision as to Matthew Stringer remains at issue in our court. If even a single
potential juror is impermissibly excluded, “any subsequently imposed death
penalty cannot stand.” 47
       The federal district court conditionally granted habeas relief based on
Stringer’s exclusion. 48 The district court reasoned that Stringer had been
removed from the venire “‘because [he] voiced general objections to the death
penalty or expressed conscientious or religious scruples against its
infliction’ . . . without any basis for determining that he would be substantially
impaired in his ability to follow the law.” 49
       It is unclear from the Supreme Court’s decisions whether removal of a
potential juror based on his or her views about the death penalty is to be
reviewed as a factual determination, a legal issue, or a mixed question of law
and fact. In its pre-AEDPA decision in Wainwright v. Witt, the Supreme Court
held that the Eleventh Circuit had erroneously concluded that the issue is a
mixed question of law and fact. 50 In Witt, the state trial court excluded a
potential juror; the Florida Supreme Court affirmed on direct appeal, rejecting
the Witherspoon claim; the Supreme Court denied certiorari; state



       43 391 U.S. 510 (1968).
       44 448 U.S. 38 (1980).
       45 469 U.S. 412, 429 (1985).
       46 Smith, 297 S.W.3d at 268-74.
       47 Davis v. Georgia, 429 U.S. 122, 123 (1976); see also Gray v. Mississippi, 481 U.S.

648, 666 (1987) (discussing Davis v. Georgia and reversing a Mississippi sentence of death
because a single juror was improperly excluded).
       48 ROA.461.
       49 ROA.447-48 (quoting Witherspoon v. Illinois, 391 U.S. 510, 522 (1968)).
       50 469 U.S. at 427-29.



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                                       No. 18-70015
postconviction review was unsuccessful; the federal district court denied
habeas relief; but the Eleventh Circuit granted the writ of habeas corpus based
on the Witherspoon claim. 51 The Supreme Court reversed. 52 Writing for the
Court, Justice Rehnquist reasoned that “[t]he trial judge is of course applying
some kind of legal standard to what he sees and hears, but his predominant
function in determining juror bias involves credibility findings whose basis
cannot be easily discerned from an appellate record.” 53 The Supreme Court
therefore held that “[t]hese are the ‘factual issues’ that are subject to
§ 2254(d).” 54
      The text of 28 U.S.C. § 2254(d) as it existed when Witt was written is
quoted in footnote seven of Witt, 55 and we will not reproduce it here. But
§ 2254(d) provided that in any federal habeas proceeding considering a state
court decision on the merits, “a determination . . . of a factual issue . . . shall be
presumed to be correct.” 56           The Supreme Court held in Witt that the
presumption of correctness, as explicated in Patton v. Yount, 57 “applies equally
well to a trial court’s determination that a prospective capital sentencing juror
was properly excluded for cause.” 58 Subsequently, in Darden v. Wainwright,
in holding that a juror was properly excluded in a death penalty case, the Court
reiterated that “Witt . . . made clear that the trial judge’s determination that a
potential juror is impermissibly biased is a factual finding entitled to a
presumption of correctness under 28 U.S.C. § 2254.” 59 It would seem from



      51 Id. at 415 (citations omitted).
      52 Id. at 435.
      53 Id. at 429.
      54 Id.
      55 Id. at 426 n.7.
      56 Id.; see also id. at 426.
      57 467 U.S. 1025 (1984).
      58 Witt, 469 U.S. at 429.
      59 477 U.S. 168, 175 (1986).

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these pre-AEDPA precedents that a state court’s determination that a
potential juror in a capital case is substantially impaired is a factual finding.
However, subsequent decisions counsel that we should assess such a
determination under both subsection (1), the “contrary to” or “unreasonable
application of, clearly established Federal law” prong, and subsection (2), the
“unreasonable determination of the facts in light of the evidence” prong, of
§ 2254(d).
       Passages in the Supreme Court’s decision in Uttecht v. Brown, which was
governed by AEDPA, 60 continued to indicate that whether a state court’s
exclusion of a potential juror for cause was permissible is a factual issue. 61
However, in observing that AEDPA provided “additional” “directions to accord
deference” that are “independent,” 62 the Court cited both subsections (1) and



       60   551 U.S. 1, 35-36 (2007) (STEVENS, J., dissenting) (“[T]his case comes to us under
the standard of review imposed by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA).”).
         61 See, e.g., id. at 7 (“Deference is owed regardless of whether the trial court engages

in explicit analysis regarding substantial impairment; even the granting of a motion to excuse
for cause constitutes an implicit finding of bias.”); id. (“The judgment as to ‘whether a
venireman is biased . . . is based upon determinations of demeanor and credibility that are
peculiarly within a trial judge’s province. Such determinations [are] entitled to deference
even on direct review; the respect paid such findings in a habeas proceeding certainly should
be no less.’” (alteration in original) (quoting Witt, 469 U.S. at 429)); id. at 8 (“Even when ‘[t]he
precise wording of the question asked of [the venireman], and the answer he gave, do not by
themselves compel the conclusion that he could not under any circumstance recommend the
death penalty,’ the need to defer to the trial court remains because so much may turn on a
potential juror’s demeanor.” (alterations in original) (quoting Darden, 477 U.S. at 178)); id.
at 9 (“[I]n determining whether the removal of a potential juror would vindicate the State’s
interest without violating the defendant’s right, the trial court makes a judgment based in
part on the demeanor of the juror, a judgment owed deference by reviewing courts.” (citing
Witt, 469 U.S. at 424-34)); id. (“Deference to the trial court is appropriate because it is in a
position to assess the demeanor of the venire, and of the individuals who compose it, a factor
of critical importance in assessing the attitude and qualifications of potential jurors.” (citing
Witt, 469 U.S. at 428)).
         62 Id. at 10 (“The requirements of the Antiterrorism and Effective Death Penalty Act

of 1996, 110 Stat. 1214, of course, provide additional, and binding, directions to accord
deference. The provisions of that statute create an independent, high standard to be met

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(2) of § 2254(d). Nevertheless, the Court ultimately concluded in a single
sentence that “[the Supreme Court of Washington’s] decision, like the trial
court’s, was not contrary to, or an unreasonable application of, clearly
established federal law.” 63 The Court did not expressly make a determination
under § 2254(d)(2).
       More recently, in White v. Wheeler, the Supreme Court concluded that
“[t]he Court of Appeals was required to apply” § 2254(d)(1)’s “‘contrary to,
or . . . unreasonable     application      of,    clearly   established     Federal      law’”
“deferential standard to the state court’s analysis of [a] juror exclusion claim”
in a death penalty case. 64 Citing Witt as the clearly established federal law, 65
the Court applied § 2254(d)(1)’s standard to both the state trial court’s decision
to exclude a potential juror and the Kentucky Supreme Court’s decision that
the trial court did not err. 66
       We conclude from these decisions that the prudent course is to apply
AEDPA’s presumption under § 2254(e)(1) that “a determination of a factual
issue made by a State court” is “correct” and to apply both of § 2254(d)’s
standards. The substance of the clearly established federal law, including the
deference that is to be accorded a trial court’s determination that a potential
juror is substantially impaired, is set forth in Witherspoon, as modified by Witt
and its progeny.


before a federal court may issue a writ of habeas corpus to set aside state-court rulings. See
28 U.S.C. §§ 2254(d)(1)-(2) . . . .”).
        63 Id. at 20.
        64 136 S. Ct. 456, 460 (2015) (quoting 28 U.S.C. § 2254(d)(1)).
        65 Id. (citing Witt, 469 U.S. at 425-26).
        66 Id. at 461 (“The trial judge’s decision to excuse Juror 638 did not violate clearly

established federal law by concluding that Juror 638 was not qualified to serve as a member
of this capital jury.”); id. (“[T]he Kentucky Supreme Court’s ruling that there was no error is
not beyond any possibility for fairminded disagreement.”); id. at 462 (“The Kentucky
Supreme Court was not unreasonable in its application of clearly established federal law
when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment.”).

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                                       A
      The voir dire in Smith’s trial spanned several weeks.          The venire
consisted of four panels of more than seventy potential jurors each that were
summoned and questioned at different times. 67 Potential jurors on each panel
were first directed to complete a questionnaire. 68 The state trial court then
conducted a general voir dire before individually questioning jurors. 69 The
general voir dire of the first panel summoned began on May 8, 2006. 70
      Stringer, whose exclusion is at issue, was first summoned on Wednesday,
May 17, 2006. 71 The questionnaire that he was given contained instructions
from the state trial court, which explained that “[y]our oath requires that you
truthfully answer the questions.” 72 He averred in signing his questionnaire
that his answers were given under oath. 73
      Stringer’s answers revealed that he was 25 years old. 74 He checked “No”
in response to “Have you ever been opposed to the death penalty?” 75 He
checked “Yes” in response to “Should people ACCUSED of murder be treated
differently than people accused of committing other crimes?” 76            When
prompted to “please explain” his response to that question, he wrote, “Thats
[sic] one of the most hanest [sic] crimes.” 77 In response to “What are your
feelings about the death penalty? Please explain,” Stringer wrote, “Its [sic]



      67 ROA.2211 (first panel); ROA.2656 (second panel) ROA.3184 (third panel);
ROA.3542 (fourth panel).
     68 See, e.g., ROA.2211.
     69 See, e.g., ROA.2213-52, 2256-72.
     70 ROA.2210.
     71 ROA.3583.
     72 ROA.8136.
     73 ROA.8151.
     74 ROA.8137.
     75 ROA.8145.
     76 ROA.8147.
     77 ROA.8147.



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good that we have it and should be used on the worst of crimes.” 78 When asked
“Do you think the death penalty in Texas is used too often or too seldom?
Why?” Stringer wrote, “I’m sure it is being used often enough.” 79 Stringer was
instructed to check one of five options “which ‘best’ summarizes your general
views about capital punishment (the death penalty)” ranging from “I am
opposed to capital punishment under any circumstances” to “I am strongly in
favor of capital punishment as an appropriate penalty.” 80 He checked the
middle option, which was “I am neither generally opposed nor generally in
favor of capital punishment.” 81 He was then asked to check one of five options
after being instructed to “[a]ssume you are on a jury to determine the sentence
for a defendant who has already been convicted of a capital murder. If the law
gives you a choice of death or life imprisonment: (check only one).” 82 The five
options ranged from “I could not vote for the death penalty regardless of the
facts and circumstances of the case” to “I would always vote for the death
penalty in a case where the law allows me to do so.” 83 He chose the middle
option, which was “I would consider all of the penalties provided by law and
the facts and circumstances of the particular case.” 84 Stringer was given a list
of statements and asked to check “AGREE” or “DISAGREE” next to each. 85 He
agreed that “[l]ife imprisonment is more effective than capital punishment,”
“[c]apital punishment is just and necessary,” “[i]t doesn’t make any difference
to me whether we have capital punishment or not,” “[c]apital punishment



      78 ROA.8148.
      79 ROA.8148.
      80 ROA.8149.
      81 ROA.8149.
      82 ROA.8149.
      83 ROA.8149.
      84 ROA.8149.
      85 ROA.8150.



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                                 No. 18-70015
should be used more often than it is,” “[p]rison makes convicted people worse,”
and “[p]rison rehabilitates people convicted of crimes.” 86        He checked
“DISAGREE” next to these statements: “[e]xecution of criminals is a disgrace
to civilized society,” “I do not believe in capital punishment, but it is not
practically advisable to abolish it,” “[c]apital punishment is the most hideous
practice of our time,” “[c]apital punishment gives the criminal what he
deserves,” “[t]he state cannot teach the sacredness of human life by destroying
it,” and “[c]apital punishment is justified only for pre-meditated murder.” 87
Stringer checked “No” in response to “Do you want to be a juror in this case?”
and in response to “Why or why not?” he wrote, “If this is a murder trial, I
couldn’t cause [sic] the talk of death an [sic] any way make [sic] me
uncomfortable.” 88
      Stringer attended a general voir dire on Thursday, May 18, 2006, 89 the
day after he had first been summoned and filled out the questionnaire. 90 At
the outset, the court told the venire that some of them would be excused based
on their answers to the questionnaire, and the court then called out the names
and prospective juror numbers of those who were excused. 91 The state trial
court explained to the remaining members of the venire what Smith’s trial
rights were and then turned to the capital sentencing process. 92 The court told
these prospective jurors that, if the jury convicted Smith, there would be a
second phase of the trial in which the jury would determine whether Smith




      86 ROA.8150.
      87 ROA.8150.
      88 ROA.8150.
      89 ROA.3542, 3797.
      90 ROA.3583.
      91 ROA.3544-46.
      92 See ROA.3550-83.



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                                       No. 18-70015
would receive a life sentence or a death sentence. 93 The judge explained that
the jury would have to answer two special issues, and the answer to those
issues would determine the sentence the judge imposed. 94 The court told the
prospective jurors that the first question was “Do you find from the evidence
beyond a reasonable doubt that there is a probability that the Defendant would
commit criminal acts of violence that would constitute a continuing threat to
society?” 95 The court gave a lengthy explanation of the elements of this issue,
emphasizing more than once that a “no” answer meant that the defendant
would serve forty years in prison before being considered for parole, but a “yes”
answer to this question could mean a sentence of death. 96 The state court then
told the venire what the second issue would be, in phrases because of the length
of the question, explaining each phrase in detail and advising that a “no”
answer would mean that the defendant would receive the death penalty. 97
       The state trial court then explained that the purpose of voir dire was “to
make sure that all jurors can keep an open mind; that they can follow the law
that [the court] give[s]; that they can apply the facts to the circumstances that
they hear to the law that [the court] give[s], wherever it leads them, however
it leads [them] to answer these questions.” 98 After the court concluded its



       93  ROA.3571-73.
       94  ROA.3575-80; see also TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2 (West Supp.
2018) (mandating that the jury answer two issues: (1) “whether there is a probability that
the defendant would commit criminal acts of violence that would constitute a continuing
threat to society”; and (2) “[w]hether, taking into consideration all of the evidence, including
the circumstances of the offense, the defendant’s character and background, and the personal
moral culpability of the defendant, there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment without parole rather than a
death sentence be imposed”).
        95 ROA.3575.
        96 ROA.3575-3578.
        97 ROA.3579-3582.
        98 ROA.3582.



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                                   No. 18-70015
general voir dire, the prosecution and defense agreed to remove more members
of the venire without further questioning. 99
      Stringer’s individual voir dire began the following Monday, on May 22,
2006. 100 The exchange between Stringer and the court in its entirety was as
follows:
      Court:         Hello, Mr. Stringer. How are you?
      Stringer:      Fine.
      Court:     You may be seated. Mr. Stringer, I noticed you the
           other day. I noticed that you were paying attention to what
           I was saying. Obviously, this is a very important case with
           potentially a very serious potential punishment, if you find
           the Defendant guilty of capital murder, and if you answer
           these questions in a particular way as I explained.
               Do you have any moral, religious, or conscientious objection
               to the imposition of death in an appropriate capital murder
               case?
      Stringer: Death bothers me a little bit.              Makes        me
            uncomfortable talking about it, but other than that.
      Court:      And let me tell you this, it’s not an easy job to be on a
           jury, it’s hard because you’re sitting in judgment of another
           person. No one is going to tell you that it’s easy because it’s
           not. But the fact of the matter is, just to be perfectly blunt
           and straightforward and bottom line, if this man is found
           guilty and you-all answer these questions in a particular
           way, I impose the sentence of death.
               There are some people that tell us they can participate, and
               some tell us they can’t. There are some people that tell us,
               you know, Judge, I believe in the death penalty, but I could
               never be a participant where a person ultimately could get
               the death penalty. And those people, obviously, are not
               appropriate jurors for this type of case. So, only you know
               the answers and there are no right answers, and there are
               no wrong answers. We’ve already gone through 248 people.


      99   ROA.3587.
      100  ROA.3764, 3797.
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                                    No. 18-70015
            You are No. 249. And we only have nine jurors. We got to
            have 12. So, we’re still looking.
            Obviously, there are people that feel all types of ways. But
            how do you feel?       You’re telling me that you feel
            uncomfortable with death. What does that mean?
      Stringer:    Anything about it pretty much.
      Court:     So, when you say, “anything about it,” does that mean,
           and I don’t want to put words in your mouth, you have to tell
           me, now is the time. Because the worst thing that would
           happen is for you to get past this process, you’re sitting over
           there on Monday, June the 19th, and you go, hey, Judge,
           guess what, I’ve been thinking about this and I can’t do it.
           By then it’s too late. The worst thing is that you didn’t say
           anything at all and you end up, not only lying to yourself but
           you’re lying to us, the Court, so only you know.
            So, let me ask you this question again and you have to say
            yes or no, not I think, maybe, you know, that kind of thing.
            We need to know precisely, yes, you can or no, you can’t.
            Okay. How you feel. Do you have any objections—any
            moral, conscientious or religious objections to the imposition
            of the death penalty in an appropriate capital murder case?
      Stringer:    Yes.
      Court:    Yes; which, morally, religiously, conscientiously,
           which objection do you have?
      Stringer:    Morally and conscientiously.
      Court:       Okay. Morally and conscientiously. 101
      The prosecution then moved to strike Stringer for cause. 102 Defense
counsel responded, “I don’t believe he’s disqualified, Your Honor. I have no
questions because I don’t believe he’s disqualified.” 103 The trial court dismissed
Stringer and overruled defense counsel’s objection. 104


      101 ROA.3797-800.
      102 ROA.3800.
      103 ROA.3800.
      104 ROA.3800.



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                                      No. 18-70015
      On direct appeal, the TCCA rejected Smith’s argument that the
dismissal of Stringer violated the federal constitution. 105               In addition to
Stringer’s answers during voir dire, the TCCA considered his questionnaire. 106
The TCCA quoted the statement in Stringer’s questionnaire that, “[i]f this is a
murder trial, I couldn’t [be a juror] [be]cause the talk of death in any way
make[s] me uncomfortable.” 107 The TCCA recounted that
      [d]uring individual voir dire, the trial court attempted to get some
      clarification of this statement, and Stringer answered that “anything
      about [death]” bothered him. Again the trial court attempted to elicit a
      definitive answer from Stringer, and Stringer finally stated that he was
      morally and conscientiously opposed to the death penalty even in an
      appropriate capital-murder case. 108
The TCCA concluded that “it is clear Stringer’s personal feelings against
capital punishment would prevent or substantially impair the performance of
his duties as a juror, [and] the trial court did not abuse its discretion in
granting the State’s challenge for cause.” 109
      The federal district court disagreed with the TCCA’s analysis and
conditionally granted habeas relief. The federal district court observed that
“Stringer said that he was ‘uncomfortable’ with the death penalty, but never
said, and was never specifically asked, if he was able to put aside his personal
feelings and follow the law as instructed by the trial court.” 110 The district
court noted Stringer’s statement in his questionnaire that “its [sic] good that
we have [the death penalty] and [it] should be used on the worst of crimes” 111
and his selection of the statement in the questionnaire that “I would consider


      105 Smith v. Davis, 297 S.W.3d 260, 274 (Tex. Crim. App. 2009).
      106 Id.
      107 Id. (second, third, and fourth alterations in original) (quoting ROA.8150).
      108 Id. (second alteration in original) (quoting ROA.3799).
      109 Id.
      110 ROA.447.
      111 ROA.447 (alterations in original) (quoting ROA.8148).



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                                      No. 18-70015
all of the penalties provided by the law and the facts and circumstances of the
particular case.” 112 The federal district court concluded that Stringer “is the
kind of juror the Court cautioned about in Witherspoon” 113 and that there was
no “basis for determining that [Stringer] would be substantially impaired in
his ability to follow the law.” 114
      The State seeks reversal. Smith urges us to uphold the federal district
court’s decision on this issue, presenting four arguments.
                                           B
      Smith’s first contention is that the trial court’s use of the phrase “in an
appropriate capital murder case” did not establish whether “the potential juror
could set aside her objections in an appropriate case if she believed the evidence
presented in court was sufficient to answer the special issues presented to the
jury in a way that would lead to a death sentence.” Smith contends that a
finding of impairment could not be made without additional questions
regarding Stringer’s objections to the death penalty and the affect those
objections would have on his ability to serve.
      Smith argues that the question posed to Stringer differs materially from
the question the Supreme Court held in Darden v. Wainwright was adequate
to elicit whether there was substantial impairment. 115 That question was: “Do
you have any moral or religious, conscientious moral or religious principles in
opposition to the death penalty so strong that you would be unable without
violating your own principles to vote to recommend a death penalty regardless
of the facts?” 116 In the present case, the question twice posed to Stringer was:



      112 ROA.447 (quoting ROA.8149).
      113 ROA.447.
      114 ROA.448.
      115 See Darden v. Wainwright, 477 U.S. 168, 175-76 (1986).
      116 Id.



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                                      No. 18-70015
“Do you have any objections—any moral, conscientious, or religious objections
to the imposition of the death penalty in an appropriate capital murder
case?” 117 Smith asserts that part of this question was “expressly deemed
inadequate in Witherspoon” and that “merely adding the phrase ‘in an
appropriate case’ to the question expressly deemed inadequate” did not
“render[] the question adequate.”
      The Supreme Court held in Witherspoon v. Illinois that “a sentence of
death cannot be carried out if the jury that imposed or recommended it was
chosen by excluding veniremen for cause simply because they voiced general
objections to the death penalty or expressed conscientious or religious scruples
against its infliction.” 118 The Supreme Court explained that, “[i]f the State had
excluded only those prospective jurors who stated in advance of trial that they
would not even consider returning a verdict of death, it could argue that the
resulting jury was simply ‘neutral’ with respect to penalty.” 119 “But,” the Court
said, when the State “swept from the jury all who expressed conscientious or
religious scruples against capital punishment and all who opposed it in
principle, the State crossed the line of neutrality.” 120
      Since that 1968 decision, the Supreme Court has clarified Witherspoon.
In Wainwright v. Witt, the Court said, “We . . . take this opportunity to clarify
our decision in Witherspoon, and to reaffirm the above-quoted standard from
Adams as the proper standard for determining when a prospective juror may




      117 ROA.3797, 3799.
      118 391 U.S. 510, 522 (1968).
      119 Id. at 520.
      120 Id.



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                                      No. 18-70015
be excluded for cause because of his or her views on capital punishment.” 121
The standard quoted from Adams was:
       This line of cases establishes the general proposition that a juror
       may not be challenged for cause based on his views about capital
       punishment unless those views would prevent or substantially
       impair the performance of his duties as a juror in accordance with
       his instructions and his oath. The State may insist, however, that
       jurors will consider and decide the facts impartially and
       conscientiously apply the law as charged by the court. 122
       In contrasting the Adams standard with that of Witherspoon, the Court
observed that the now-applicable standard “does not require that a juror’s bias
be proved with ‘unmistakable clarity.’ This is because determinations of juror
bias cannot be reduced to question-and-answer sessions which obtain results
in the manner of a catechism.” 123 The Court continued,
       What common sense should have realized experience has proved:
       many veniremen simply cannot be asked enough questions to
       reach the point where their bias has been made ‘unmistakably
       clear’; these veniremen may not know how they will react when
       faced with imposing the death sentence, or may be unable to
       articulate, or may wish to hide their true feelings. 124
The Court confirmed that “[d]espite this lack of clarity in the printed record,
however, there will be situations where the trial judge is left with the definite
impression that a prospective juror would be unable to faithfully and
impartially apply the law.” 125 In those situations, “deference must be paid to
the trial judge who sees and hears the juror.” 126




       121 Wainwright v. Witt, 469 U.S. 412, 424 (1985) (citing Adams v. Texas, 448 U.S. 38,
45 (1980)).
       122 Id. at 420 (quoting Adams, 448 U.S. at 45).
       123 Id. at 424.
       124 Id. at 424-25.
       125 Id. at 425-26.
       126 Id. at 426.



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                                       No. 18-70015
       The Wainwright v. Witt decision then considered “the degree of deference
that a federal habeas court must pay to a state trial judge’s determination of
bias.” 127 The Court explained that “whether or not a venireman might vote for
death under certain personal standards, the State still may properly challenge
that venireman if he refuses to follow the statutory scheme and truthfully
answer the questions put by the trial judge.” 128
       A subsequent decision of the Supreme Court explained that “[d]eference
is owed regardless of whether the trial court engages in explicit analysis
regarding substantial impairment; even the granting of a motion to excuse for
cause constitutes an implicit finding of bias.” 129
       The judgment as to “whether a venireman is biased . . . is based
       upon determinations of demeanor and credibility that are
       peculiarly within a trial judge’s province. Such determinations
       [are] entitled to deference even on direct review; the respect paid
       such findings in a habeas proceeding certainly should be no
       less.” 130
“[T]he finding[s] may be upheld even in the absence of clear statements from
the juror that he or she is impaired.” 131 “Thus, when there is ambiguity in the
prospective juror’s statements, ‘the trial court, aided as it undoubtedly [is] by
its assessment of [the venireman’s] demeanor, [is] entitled to resolve it in favor
of the State.’” 132
       Even when “[t]he precise wording of the question asked of [the
       venireman], and the answer he gave, do not by themselves compel
       the conclusion that he could not under any circumstance
       recommend the death penalty,” the need to defer to the trial court



       127 Id.
       128 Id. at 422.
       129 Uttecht v. Brown, 551 U.S. 1, 7 (2007) (citing Witt, 469 U.S. at 430).
       130 Id. (alteration and omission in original) (quoting Witt, 469 U.S. at 428).
       131 Id. (citing Witt, 469 U.S. at 424-25).
       132 Id. (alterations in original) (quoting Witt, 469 U.S. at 434).



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                                         No. 18-70015
       remains because so much may turn on a potential juror’s
       demeanor. 133
       Review of Witherspoon–Witt claims on federal habeas is “doubly
deferential.” 134 For a decision to be contrary to or an unreasonable application
of federal law, it must be “so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” 135 Based on the Supreme Court’s precedents and
the record in this case, we cannot say the TCCA’s decision is contrary to or an
unreasonable application of federal law as determined by the Supreme Court.
       Stringer said in his questionnaire that he “couldn’t” be a juror because
“the talk of death an [sic] any way” made him “uncomfortable.” 136 During his
individual voir dire, he said, “Death bothers me a little bit.                     Makes me
uncomfortable talking about it, but other than that.” 137 When the state court
followed up on that answer, asking “You’re telling me that you feel
uncomfortable with death. What does that mean?” Stringer said, “Anything
about it pretty much.” 138 These statements would cause a reasonable jurist to
question whether Stringer was substantially impaired as a juror in both the
guilt and penalty phases of a murder trial.
       Viewing the record as a whole, the state trial court communicated to
Stringer that it needed to know whether he was a person who “could never be
a participant where a person ultimately could get the death penalty” and that



       133   Id. at 8 (alterations in original) (quoting Darden v. Wainwright, 477 U.S. 168, 178
(1986)).
       134 White v. Wheeler, 136 S. Ct. 456, 460 (2015) (per curiam) (quoting Burt v. Titlow,
571 U.S. 12, 15 (2013)).
       135 White v. Woodall, 572 U.S. 415, 419-20 (2014) (quoting Harrington v. Richter, 562

U.S. 86, 103 (2011)).
       136 ROA.8150.
       137 ROA.3798.
       138 ROA.3798-99.



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                                  No. 18-70015
“[w]e need to know precisely, yes, you can or no, you can’t.” 139 The state trial
court made two references to the special issues that would be asked in the
penalty phase of a capital trial and explained that if they were answered “in a
particular way,” the death penalty would be imposed. 140 The trial court then
said, “There are some people that tell us they can participate, and some people
tell us they can’t.” 141 A reasonable interpretation of this statement is that some
people can participate in the process and answer the questions based on the
facts of the case and others could not participate in the process because they
could not answer the questions in a way that would result in the death,
regardless of the facts of the case. The question “Do you have any objections—
any moral, conscientious or religious objections to the imposition of the death
penalty in an appropriate capital murder case” is not as precise as it might
have been.    But it plausibly inquired whether, “in an appropriate capital
murder case,” meaning one in which Stringer thought it would otherwise be
appropriate to impose the death penalty in light of the questions asked during
the penalty phase, Stringer would personally have any moral, conscientious,
or religious objections to voting to impose the death penalty. He said, “Yes,”
he would. 142     He then said his objection would be “[m]orally and
conscientiously.” 143
      Further, the trial court’s statement that “I noticed you [Stringer] the
other day. I noticed that you were paying attention to what I was saying,”
reflects that Stringer’s demeanor was noteworthy to trial court. 144          This



      139 ROA.3798, 3799.
      140 ROA.3575-82, 3797.
      141 ROA.3798.
      142 ROA.3799.
      143 ROA.3799-800.
      144 ROA.3797.



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                                     No. 18-70015
statement was not part of the trial court’s pattern during the individual voir
dires. At the least, there was an ambiguity as to Stringer’s ability to set aside
his personal views and to follow Texas’s statutory scheme and truthfully
answer the questions submitted by the state trial court.                 “[A]ided, as it
undoubtedly [was] by its assessment of [the venireman’s] demeanor,” the state
trial court was entitled to resolve that ambiguity in favor of the State. 145
                                            C
      Smith argues that though the state trial court’s decision to exclude
Stringer is “due deference,” that “does not foreclose the possibility of reversal.”
We of course agree that AEDPA’s deferential standard of review does not
foreclose the possibility of relief. “[A] reviewing court may reverse the trial
court’s decision where the record discloses no basis for a finding of substantial
impairment.” 146 “But where . . . there is lengthy questioning of a prospective
juror and the trial court has supervised a diligent and thoughtful voir dire, the
trial court has broad discretion.” 147
      Smith asserts that the state trial court’s voir dire of Stringer “was
anything but thoughtful and diligent.” Applying AEDPA’s “doubly deferential”
standard of review, we cannot say that there was no basis for the state trial
court’s finding of substantial impairment. The TCCA did not unreasonably
apply clearly established federal law in this regard.
      Smith relies on an opinion by the TCCA to argue that “[b]efore a
prospective juror may be excused for cause . . . , the law must be explained to
him, and he must be asked whether he can follow that law, regardless of his




      145See Uttecht v. Brown, 551 U.S. 1, 7 (2007) (third alteration in original) (quoting
Wainwright v. Witt, 469 U.S. 412, 434 (1985)).
     146 Id. at 20.
     147 Id.



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                                       No. 18-70015
personal views.” 148      That rule was announced by a Texas court, not the
Supreme Court, and it therefore does not constitute clearly established federal
law.   “[I]t is only noncompliance with federal law that renders a State’s
criminal judgment susceptible to collateral attack in the federal courts.” 149
                                              D
       Smith contends that his trial counsel’s decision not to question Stringer
is not a reason to find it was proper to dismiss him for cause. The TCCA’s
opinion stated, “Defense counsel declined to question Stringer, but objected to
the State’s challenge for cause.” 150 We do not take this statement as indicating
that the TCCA relied on counsel’s decision not to question Stringer as a basis
for declining to reverse the state trial court’s judgment. The statement was no
more than a factual recitation regarding the proceedings in the trial court, as
is evident from the statement’s inclusion of the fact that defense counsel
objected to the State’s challenge for cause.
       Smith’s argument on this point is also responsive to arguments by the
State that the federal district court should have considered other instances
during voir dire when Smith’s counsel asked questions of potential jurors. We
need not consider this argument by the State, and accordingly, we do not
consider Smith’s response to it.
                                              E
       Arguing that there is no indication in the record that the state trial court
considered Stringer’s questionnaire and that Stringer had not been “instructed
on the law” when he filled out the questionnaire, Smith contends that we




       148Id. at 28 (omission in original) (quoting Gardner v. State, 306 S.W.3d 274, 295 (Tex.
Crim. App. 2009)).
      149 Wilson v. Corcoran, 562 U.S. 1, 5 (2010).
      150 Smith v. State, 297 S.W.3d 260, 274 (Tex. Crim. App. 2009).

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                                    No. 18-70015
should not consider it. At oral argument, however, Smith’s counsel conceded
that the state trial court could properly rely on the questionnaire.
      There is considerable evidence that the trial court had the potential
juror’s questionnaires during the individual voir dires.               It was not
unreasonable for the TCCA to have assumed that during Stringer’s individual
questioning, the state trial court sought clarification of a statement in
Stringer’s questionnaire. 151
      In any event, during his individual voir dire Stringer repeated the same
statement from his questionnaire that the TCCA quoted in its decision on
direct appeal, as the TCCA noted. 152 There can be no harm in the TCCA’s
consideration of this statement from the questionnaire when the statement
was repeated in the presence of the trial court.
      Nor did the TCCA, as contended by Smith, rely solely or even
predominantly on this statement. The TCCA said, “Stringer finally stated that
he was morally and conscientiously opposed to the death penalty even in an
appropriate capital-murder case” and concluded that “[a]s it is clear Stringer’s
personal feelings against capital punishment would prevent or substantially
impair the performance of his duties as a juror, the trial court did not abuse its
discretion in granting the State’s challenge for cause.” 153
                                         F
      In sum, the state court proceedings concerning the exclusion of Stringer
as a juror did not “result[] 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.” 154            Nor did the state court


      151 See id.
      152 Id.
      153 Id.
      154 28 U.S.C. § 2254(d)(1).



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                                       No. 18-70015
proceedings “result[] in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 155 The federal district court did not give appropriate deference to
the TCCA’s determination that the trial court did not violate the federal
constitution when it removed Stringer for cause. “[A] state prisoner must show
that the state court’s ruling on the claim being presented in federal court was
so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” 156 Smith has not made that showing. “[F]ederal habeas review
of a Witherspoon–Witt claim—much like federal habeas review of an
ineffective-assistance-of-counsel claim—must be ‘doubly deferential.’” 157
                                              V
          The federal district court denied all of Smith’s other claims for habeas
relief.         But Smith maintains that we should affirm the district’s court’s
judgment on the alternate basis that he was denied effective assistance of
counsel at the sentencing phase, citing Strickland v. Washington. 158 To prevail
on a Strickland claim, he must show “(1) that his counsel’s performance was
deficient, and (2) that the deficient performance prejudiced his defense.” 159
Review of Strickland claims is always deferential, and when we review a state
court determination under AEDPA, review is “doubly deferential.” 160




           Id. § 2254(d)(2).
          155

           White v. Wheeler, 136 S. Ct. 456, 460 (2015) (quoting White v. Woodall, 572 U.S.
          156

415, 419-420 (2014)).
       157 Id. (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)).
       158 466 U.S. 668 (1984).
       159 Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (citing Strickland, 466 U.S. at

689-94).
       160 Burt, 571 U.S. at 15 (quoting Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).

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                                     No. 18-70015
                                            A
      Smith argues that trial counsel failed to conduct a reasonable sentencing
investigation.   He asserts that counsel failed to follow the American Bar
Association’s Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases (ABA Guidelines). He also argues that counsel
was deficient by failing to present evidence that Smith suffered from
schizophrenia.
      To establish deficient performance, Smith must show “counsel’s
representation ‘fell below an objective standard of reasonableness’” under
prevailing professional norms. 161 “[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” 162
      When Smith was first incarcerated at the age of eighteen, he was
admitted to a psychiatric unit because he was suicidal and depressed. 163 He
was soon readmitted because he was reported to be delusional, paranoid, and
experiencing auditory hallucinations. 164 He referred to fear of being killed by
a demon and complained of seeing ghosts. 165               Immediately after he was
released he was readmitted, claiming that he believed demons were going to
stop his heart that night. 166 He later admitted to crisis center staff that he was
not possessed by demons. 167 He reportedly rubbed a Bible on his chest to
exorcise the demons, rubbing so hard that he injured himself and the Bible. 168



      161 Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688).
      162 Strickland, 466 U.S. at 690.
      163 ROA.5857.
      164 ROA.5882.
      165 ROA.5883.
      166 ROA.5884.
      167 ROA.5884.
      168 ROA.5958.



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                                      No. 18-70015
Trial counsel was aware of these records and had Smith evaluated by mental
health professionals. 169
       Trial counsel retained the type of defense team recommended by the
ABA Guidelines. 170 Trial counsel engaged a fact investigator (Molli Steinle), a
mitigation specialist (Bettina Wright), a neuropsychologist (Dr. Mark
Lehman), and a psychiatrist (Dr. George Leventon). 171                 After a “clinical
interview,” psychological and neuropsychological testing, and a “review of
extensive records,” 172 Dr. Lehman concluded that Smith did not have
significant psychological issues. 173
       Dr. Leventon also reviewed Smith’s high school records, Social Security
records, criminal history, disciplinary records from his prior incarceration, and
medical records from his prior incarceration. 174 Smith told Dr. Leventon that
he shot both victims. 175 Smith also told Dr. Leventon that he had fabricated
the delusions reported in his prison records and that he never suffered from
them. 176 Dr. Leventon diagnosed Smith with “malingering and an antisocial




       169 ROA.6153 (“I was well aware of the record information concerning Mr. Smith’s
‘breakdown’ while incarcerated in the penitentiary.”); ROA.6154 (“We obtained all the
available records with regard to Mr. Smith. All the records reviewed by Dr. Bekh Bradley-
Davino, Ph.D., and mentioned in the affidavit referenced in Mr. Smith’s application for writ
of habeas corpus, were collected by the investigators pursuant to my direction and were
reviewed by me. They were also made available to the psychiatrist, Dr. Leventon, who
examined Mr. Smith.”) ROA.6195; ROA.7461-62.
       170 See American Bar Association Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases, 4.1A (2003) (“The defense team should consist of
no fewer than two attorneys . . . an investigator, and a mitigation specialist” and “should
contain at least one member qualified by training and experience to screen individuals for
the presence of mental or psychological disorders or impairments.”).
       171 ROA.6153.
       172 ROA.7934 (capitalization omitted).
       173 ROA.7939.
       174 ROA.7846.
       175 ROA.7855-56.
       176 ROA.7857.



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                                    No. 18-70015
personality disorder” and conveyed the diagnosis to Smith’s defense
attorneys. 177 Dr. Leventon did not interview any of Smith’s family members. 178
      Trial counsel interviewed Smith as well as his family members. 179
Counsel interviewed Smith’s mother, father, sister, and brothers on multiple
occasions. 180 Counsel interviewed Smith’s aunt, ex-sister-in-law, ex-girlfriend,
and teachers who remembered Smith from his days in school. 181 Counsel also
interviewed a woman with whom Smith lived shortly after he was released
from prison and not long before the murders for which Smith was convicted. 182
None indicated that Smith had any family history of mental illness. 183
      Smith now argues that counsel rendered deficient performance because
the experts were not informed of a family history of mental illness or witness
statements confirming his prior hallucinations. He argues that counsel did not
follow ABA Guideline 10.7 and failed to conduct a “multi-generational
investigation . . . extend[ing] as far ‘as possible vertically and horizontally’”
that included “at least three generations.” 184 As part of his habeas application,
Smith included affidavits from family members that claim other members of
his family suffer from mental illness. 185 Habeas counsel also retained Dr. Bekh
Bradley-Davino, Ph.D., to “conduct a comprehensive psychiatric evaluation of




      177 ROA.7858.
      178 ROA.7875-76.
      179 ROA.6153-54
      180 ROA.6154.
      181 ROA.6154.
      182 ROA.6154.
      183 ROA.6154.
      184 See American Bar Association Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases, 10.7 cmt. & n.216 (2003).
      185 ROA.256 (Johnny Carl Miles, uncle); ROA.260 (Felicia Davis, maternal cousin);

ROA.262 (Deondrea Smith, younger brother); ROA.284 (Kendal Ray Smith, older brother);
ROA.291 (Christopher Thurman, family friend); ROA.297 (Mark Lemons, cousin).

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                                      No. 18-70015
[Smith].” 186    Dr. Bradley-Davino diagnosed Smith with schizophrenia,
paranoid type. 187 He considered a history of mental illness in Smith’s family.
Smith’s maternal uncle, Johnny Miles, “indicate[d] that other members of Mr.
Smith’s maternal family displayed unusual symptoms and behaviors.” 188 Miles
specifically stated that another uncle, Craven Brooks, “was institutionalized
at one point in his life.” 189 Dr. Bradley-Davino reviewed the medical records of
Vincent     Davis, 190   Smith’s      cousin,    who    has   been   diagnosed     with
schizophrenia. 191 Two other family members, an uncle named Lee Arthur
Miles and Smith’s maternal grandmother, also apparently “had unusual
experiences such as seeing spirits.” 192
      Smith points to an affidavit by Dr. Lehman that states that, had he been
provided the same affidavits that Dr. Bradley-Davino reviewed that allegedly
corroborate Smith’s symptoms, his own diagnosis of Smith might have been
different. 193 Dr. Lehman said specifically he “would not exclude a diagnosis of
schizophrenia.” 194
      Smith relies on Rompilla v. Beard 195 to argue that counsel should have
done more to investigate mitigating evidence, particularly his mental health.
Smith quotes from Rompilla: “[E]ven when a capital defendant’s family
members and the defendant himself have suggested that no mitigating
evidence is available, his lawyer is bound to make reasonable efforts to obtain



      186 ROA.269.
      187 ROA.270.
      188 ROA.278
      189 ROA.257, 278.
      190 ROA.269.
      191 ROA.257, 260, 267.
      192 ROA.278.
      193 ROA.303.
      194 ROA.303.
      195 545 U.S. 374, 377 (2005).



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                                  No. 18-70015
and review material . . . .” 196 However, Smith omits the end of that sentence:
“his lawyer is bound to make reasonable efforts to obtain and review material
that counsel knows the prosecution will probably rely on as evidence of
aggravation at the sentencing phase of trial.” 197 In Rompilla, the defendant’s
trial attorneys had presented weak mitigating evidence and the Supreme
Court discussed the availability of potential mitigating evidence from the
prisoner’s school records and prior incarcerations. 198     However, the Court
granted relief because “the lawyers were deficient in failing to examine the
court file on Rompilla’s prior conviction.” 199 Rompilla’s trial attorneys never
examined the file from a previous conviction for a similar crime, despite notice
from the prosecution that it would rely on the details of that crime to prove
aggravating factors and obtain the death penalty. 200        After finding that
counsel’s failure to review the file was unreasonable, the Court had no
difficulty finding prejudice. 201 The file contained prison records that painted a
wholly different picture of the defendant’s mental health and childhood that
would have led them down a different investigative path. 202
      Smith’s evidence does not come close to the trove of easily accessible
evidence in Rompilla. The state habeas court found that the affidavits that
Dr. Bradley-Davino relied upon were “self-serving and unpersuasive to
demonstrate that the applicant suffers from the negative phase of
schizophrenia.” 203 Further, nothing that Smith’s trial attorneys had uncovered



      196 Id.
      197 Id. (emphasis added).
      198 See id. at 381-83.
      199 Id. at 383.
      200 Id. at 383-85.
      201 Id. at 390-93.
      202 Id. at 390-91.
      203 ROA.7468.



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                                      No. 18-70015
prior to trial had led them to any family history of mental illness. Smith
himself and his family all reported no mental illness in the family. Decisions
not to investigate are reasonable to the degree the evidence makes those
decisions reasonable. 204 In Rompilla, it was unreasonable to fail to investigate
records because the prosecution indicated it would rely on those records, not
because there was mitigating information in the file. 205 Smith has not shown
that counsel’s reliance on its retained mental health experts was unreasonable,
let alone that the TCCA’s determination of his Strickland claim was
unreasonable. 206
       Nor has Smith shown that trial counsel performed in a constitutionally
defective manner by failing to present evidence of his alleged mental illness.
The state habeas court determined that Smith has not shown that he suffers
from schizophrenia, 207 and Smith has not presented clear and convincing
evidence that this factual determination was incorrect. 208               We have also
recognized that evidence of mental illness can be a “double edge sword,” in that
it could be both aggravating and mitigating. 209 Further, adducing evidence of
Smith’s alleged schizophrenia would have opened the door to cross-
examination. Smith told Dr. Leventon that the delusions described in his
prison records had been feigned and that he never suffered from them. 210 Dr.
Leventon diagnosed Smith with “malingering and an antisocial personality


       204 See Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland v. Washington,
466 U.S. 668, 690-91 (1984)).
       205 See Rompilla, 545 U.S. at 383-85.
       206 See Harrington v. Richter, 562 U.S. 86, 107 (2011) (“Counsel was entitled to

formulate a strategy that was reasonable at the time and to balance limited resources in
accord with effective trial tactics and strategies.”).
       207 ROA.7469.
       208 See 28 U.S.C. § 2254(e)(1).
       209 Gray v. Epps, 616 F.3d 436, 449 (5th Cir. 2010) (quoting Dowthitt v. Johnson, 230

F.3d 733, 745 (5th Cir. 2000)).
       210 ROA.7857.



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                                     No. 18-70015
disorder” and conveyed the diagnosis to Smith’s defense attorneys. 211 Cross-
examination of Dr. Leventon would have opened the door to Smith’s confession
to Dr. Leventon that Smith shot and killed Tammie White and her eleven-year-
old daughter Kristina White. 212 We agree with the TCCA that defense counsel
made a reasonable tactical decision to pursue a mitigation strategy based on
Smith’s impoverished upbringing, religious faith, and deep remorse for the
killings. In light of our “doubly deferential” review, Smith is not entitled to
habeas relief on this claim.
                                            B
      Even assuming Smith’s trial counsel’s performance was deficient, Smith
has not established prejudice.         To establish prejudice, he must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” 213 In sentencing, the evidence
must be such that “there is a reasonable probability that at least one juror
would have struck a different balance” among mitigating and aggravating
factors that would result in a sentence of life instead of death. 214
      Smith points to the statement in Dr. Lehman’s affidavit that he “would
not exclude a diagnosis of schizophrenia,” 215 the report of Dr. Bradley-
Davino, 216 and affidavits from family members and friends that purport to
confirm Smith’s mental illness. 217 He argues that this new evidence, if found




      211ROA.7858.
      212See ROA.7855-56.
     213 Strickland v. Washington, 466 U.S. 668, 694 (1984).
     214 Wiggins v. Smith, 539 U.S. 510, 537 (2003).
     215 ROA.303.
     216 ROA.269.
     217 See ROA.256 (Johnny Carl Miles, uncle); ROA.260 (Felicia Davis, maternal cousin);

ROA.262 (Deondrea Smith, younger brother); ROA.284 (Kendal Ray Smith, older brother);
ROA.291 (Christopher Thurman, family friend); ROA.297 (Mark Lemons, cousin).

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                                     No. 18-70015
and presented to the jury, could cause at least one juror to weigh the
aggravating and mitigating factors in favor of life.
      This evidence is not as strong as Smith portrays it.               Dr. Lehman’s
affidavit does not establish that Smith had schizophrenia. It says merely that
he would not have excluded such a diagnosis. 218 In light of the other evidence
that the jury likely would have heard in addition to Dr. Lehman’s testimony,
that slight suggestion of mental illness is insufficient to show prejudice.
Evidence that Smith previously lied about experiencing hallucinations and
was diagnosed with malingering would have damaged his credibility with the
jury. Likewise, the report of Dr. Bradley-Davino, while more certain of its
conclusion that Smith suffered from mental illness, ignored evidence that the
State could have used to cast doubt on its findings. Indeed, the TCCA found
that Dr. Bradley-Davino’s diagnosis was unpersuasive based on his report and
testimony at the evidentiary hearing because he (1) did not reference or
acknowledge in his report any of Smith’s admissions to Dr. Leventon and
defense counsel that Smith lied about being possessed by demons, and
(2) omitted several clinical notes from his report that support an alternative
diagnosis of malingering, among other evidence that casts doubt on the
schizophrenia diagnosis. 219 Smith has not explained how the state habeas
court was unreasonable in its assessment of Dr. Bradley-Davino.
      In contrast, the aggravating factors were overwhelming. In addition to
the grisly details of the crime from the guilt–innocence phase, there is evidence
that Smith intended to murder a third victim. 220 The State also introduced
evidence of his long string of criminal activities.           Smith had one juvenile



      218 ROA.303.
      219 See ROA.7467.
      220 Smith v. State, 297 S.W.3d 260, 265 (Tex. Crim. App. 2009).



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                                     No. 18-70015
delinquency 221 and three felony drug convictions. 222                He admitted to
burglarizing the home of a hospitalized, elderly woman. 223 Weighed against
the State’s strong evidence of future dangerousness, Smith’s weak evidence of
mental illness is insufficient to create “a reasonable probability that at least
one juror would have struck a different balance” among mitigating and
aggravating factors that would have resulted in a sentence of life instead of
death. 224
                                            VI
      Smith asks us to affirm the district court’s grant of habeas relief on the
basis that evolving standards of decency render those with “severe mental
illness” ineligible for the death penalty under the Eighth Amendment. A
glaring omission in Smith’s filings in our court is that he does not challenge
any of the state habeas court’s factual findings or conclusions of law regarding
his mental health in connection with his claim that he is ineligible for the death
penalty. Accordingly, even were there authority from the Supreme Court
establishing that the federal constitution prohibits the execution of the
severely mentally ill, Smith does not challenge the state trial court’s
determination on the merits that he is not severely mentally ill.
      In adjudicating Smith’s claim that he suffers from schizophrenia and is
ineligible for the death penalty, the state habeas court held an evidentiary
hearing and made factual findings. 225           The state habeas court ultimately
concluded that Smith had failed to “demonstrate by a preponderance of the
evidence that he suffers from schizophrenia in light of his multiple admissions



      221 ROA.5421-22.
      222 ROA.5233-42.
      223 ROA.4702.
      224 Wiggins v. Smith, 539 U.S. 510, 537 (2003).
      225 ROA.7455-75.



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                                      No. 18-70015
of duplicity, evidence of malingering, and diagnosis of an antisocial personality
disorder.” 226 We cannot say that in adjudicating Smith’s claim of ineligibility
for the death penalty, the state-court determinations “resulted in a decision
that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” 227 since Smith has not
challenged the reasonableness of the state court’s determination of the facts
regarding this ineligibility claim.
       With regard to the TCCA’s application of clearly established federal law,
Smith does not cite any decision of the Supreme Court holding that the
severely mentally ill are ineligible for execution. Instead, he argues that those
who are severely mentally ill are similar to the intellectually disabled 228 and
juvenile offenders 229 and therefore the severely mentally ill lack the moral
culpability to permit a sentence of death. We have rejected this argument
before. 230 Smith does not contend that his “‘concept of reality’ is ‘so impair[ed]’
that he cannot grasp the execution’s ‘meaning and purpose’ or the ‘link between
[his] crime and its punishment.’” 231 The TCCA’s decision on this issue was not
contrary to clearly established federal law.
                                     *       *        *
       For the foregoing reasons, we REVERSE the judgment of the district
court in part, to the extent that it conditionally granted habeas relief to Smith



       226  ROA.7476.
       227  28 U.S.C. § 2254(d)(2).
        228 See Atkins v. Virginia, 536 U.S. 304, 316 (2002).
        229 See Roper v. Simmons, 543 U.S. 551, 578 (2005).
        230 See Rockwell v. Davis, 853 F.3d 758, 763 (5th Cir. 2017); Mays v. Stephens, 757

F.3d 211, 219 (5th Cir. 2014); In re Neville, 440 F.3d 220, 221 (5th Cir. 2006) (per curiam).
        231 Madison v. Alabama, 139 S. Ct. 718, 723 (2019) (quoting Panetti v. Quarterman,

551 U.S. 930, 958, 960 (2007)); see also id. at 722 (holding that the Eighth Amendment does
not “forbid execution whenever a prisoner shows that a mental disorder has left him without
any memory of committing his crime . . . because a person lacking such a memory may still
be able to form a rational understanding of the reasons for his death sentence”).
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                               No. 18-70015
on his first claim for relief, and we otherwise AFFIRM the district court’s
judgment.




                                    40
