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

                                                 FILED
                                                                        September 9, 2009

                                     No. 08-70050                      Charles R. Fulbruge III
                                                                               Clerk

BILLY JOHN GALLOWAY,

                                                  Petitioner-Appellant
v.

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

                                                  Respondent-Appellee.




                  Appeal from the United States District Court
                for the Northern District of Texas, Dallas Division


Before HIGGINBOTHAM, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       Petitioner Billy John Galloway, convicted of capital murder and sentenced
to death in Texas state court, seeks a certificate of appealability (“COA”) to
appeal the district court’s order dismissing his petition for writ of habeas corpus
under 28 U.S.C. § 2254. Galloway alleges he received ineffective assistance of
counsel because his trial counsel failed to investigate and present mitigating
evidence during the punishment phase of trial. The district court held that
Galloway had not shown deficient performance of counsel and prejudice

       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
                                 No. 08-70050

resulting therefrom. Because jurists of reason would not find debatable the
district court’s ruling, Galloway’s application for a COA is DENIED.
                              I. BACKGROUND
      Galloway was convicted and sentenced to death for the 1998 murder of
David Logie in Hunt County, Texas. The evidence presented to the jury included
evidence of the following basic facts. Galloway, his friend Kevin Varga, and two
women, all of whom were on probation or parole with the South Dakota
Department of Corrections, determined to bring in some money by robbery or
extortion. The women met Logie, the victim, at a hotel and convinced him to
leave with them in Logie’s rental car. Galloway and Varga followed in a car
obtained from a man Varga had previously killed. When Logie’s car stopped,
Galloway and Varga beat, killed, and robbed Logie.
      Galloway gave specific instructions to his trial attorneys. He stated he did
not want to “punk out” or lose his “tough-guy” image, and that his attorneys
were not to present any evidence that shifted blame to Varga. He also told his
attorneys not to present evidence that would cast his father in a negative light,
though mitigation evidence often concerns circumstances of childhood. His
attorneys presented no mitigation evidence at sentencing, and later stated that
this was for various reasons, some of which were related to Galloway’s
instructions. After Galloway was convicted and sentenced to death, he filed a 28
U.S.C. § 2254 petition alleging ineffective assistance of counsel based on the
alleged failure of his counsel to properly present and investigate mitigation
evidence. The district court denied Galloway’s petition, and he now seeks a COA
from this court.
                        II. STANDARD OF REVIEW
      Because Galloway filed his 28 U.S.C. § 2254 petition after the effective
date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Pub. L. No. 104-132, 110 Stat. 1214, his petition is governed by the procedures

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and standards provided therein. See Parr v. Quarterman, 472 F.3d 245, 251–52
(5th Cir. 2006). Under the AEDPA, a petitioner must obtain a COA before
appealing the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A).
This is a jurisdictional prerequisite. See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003).
      A COA will be granted only if the petitioner makes “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). While this
threshold inquiry calls for “an overview of the claims in the habeas petition” and
“a general assessment of their merits,” the court is not allowed to engage in “full
consideration of the factual or legal bases adduced in support of the claims.”
Miller-El, 537 U.S. at 336. Rather, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Id. at 338 (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)). Any doubt regarding whether to grant a COA requires resolution
in favor of the petitioner, and the court may consider the severity of the penalty
in making that determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.
1997).
                              III. DISCUSSION
      Galloway asserts that his attorneys failed to present mitigation evidence
in their possession, and failed to conduct a more thorough investigation into
other possible mitigation evidence. We discuss each argument in turn.
A.    Standard for ineffective assistance of counsel
      To succeed on his ineffective assistance claim, Galloway had to satisfy the
two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984). He
was required to prove by a preponderance of the evidence that: (1) his attorneys’
performance was deficient; and (2) the deficient performance prejudiced his
defense.   Id. at 687.   The first prong requires Galloway to prove that his
attorneys’ representation fell below an objective standard of reasonableness. Id.

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at 688.   When a petitioner argues that his attorney failed to adequately
investigate mitigation evidence, the proper inquiry is “not whether counsel
should have presented a mitigation case, . . . [but] whether the investigation
supporting counsel’s decision not to introduce mitigating evidence of [the
defendant’s] background was itself reasonable.” Wiggins v. Smith, 539 U.S. 510,
523 (2003).
       The second prong of Strickland requires Galloway to show that “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694.
Inherent within the prejudice requirement is an element of causation. “It is not
enough for the defendant to show that the errors had some conceivable effect on
the outcome of the proceeding. Virtually every act or omission of counsel would
meet that test, . . . and not every error that conceivably could have influenced
the outcome undermines the reliability of the result of the proceeding.” Id. at
693.
       When deciding prejudice in the context of capital sentencing, the court
must “weigh the quality and quantity of the available mitigating evidence,
including that presented in post-conviction proceedings, along with . . . any
aggravating evidence.” Blanton v. Quarterman, 543 F.3d 230, 236 (5th Cir.
2008). The question is then “whether the changes to the mitigation case would
have a reasonable probability of causing a juror to change his or her mind about
imposing the death penalty.” Id.
B.     Failure to present evidence already available
       Galloway’s petition asserts that ample mitigation evidence was available
to his attorneys, which should have been presented at sentencing but was not.
This evidence showed a troubled childhood, abuse at the hands of his father, and
his drug use since age twelve. The district court determined that Galloway could
not claim ineffective assistance based on counsel’s failure to present mitigation

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evidence because Galloway had instructed them not to present certain evidence,
and any evidence not prohibited by Galloway’s instructions would not have
caused a juror to change his or her mind about imposing the death penalty.
       Galloway’s attorneys presented several justifications for their inaction.
The trial team consisted of two attorneys, Jerry Davis and Dennis Davis (no
relation), and their senior legal assistant, Paula Malacek.               All three were
deposed in prior Texas habeas proceedings. The attorneys stated they believed
that evidence of Galloway’s drug use would not have had a mitigating effect in
Hunt County, Texas, and in fact may have prejudiced the jurors against
Galloway. Furthermore, the attorneys stated that they did not offer the expert
testimony of Dr. Hopewell, a psychologist hired by the defense to evaluate
Galloway, because: (1) Galloway did not cooperate with the evaluation, and the
testimony would therefore be limited in nature; and (2) had Hopewell testified,
the prosecution would have been entitled to examine Galloway with their own
psychologist, which could have been highly prejudicial to Galloway’s case.
       With regard to evidence of childhood abuse, Galloway has asserted that his
attorneys should have ignored his instructions and presented a mitigation case.
He hinges this argument on the 2003 and 1989 editions of the American Bar
Association Guidelines for the Appointment and Performance of Defense Counsel
in Death Penalty Cases (“Guidelines”).1 See 2003 Guidelines § 10.5 commentary
(2003) (“Some clients will initially insist that they want to be executed . . . some
clients will want to contest their guilt but not present mitigation. . . . It is
ineffective assistance for counsel to simply acquiesce to such wishes”); id.


1
 Although the Supreme Court has endorsed various sets of ABA Guidelines as instructive
on the issue of reasonableness in representation, see Strickland, 466 U.S. at 688–89,
neither the Supreme Court nor this court have ever found the Guidelines to be dispositive
of a claim of ineffective assistance, see id. (noting that the Guidelines “are guides to
determining what is reasonable, but they are only guides” (emphasis added)); Ransom v.
Jones, 126 F.3d 716, 723 (5th Cir. 1997) (finding that a failure to meet the standards of the
Guidelines is not per se ineffective assistance of counsel).

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§ 10.7(A)(2) (“The investigation regarding penalty should be conducted
regardless of any statement by the client that evidence bearing upon penalty is
not to be collected or presented.”); 1989 Guidelines § 11.4.2 commentary
(“Capital counsel frequently must not only struggle against the public and
prosecution but against the self-destructive behavior of the client as well.”
(internal quotation marks omitted)). The district court considered Galloway’s
arguments based on the Guidelines, and rejected them in light of Fifth Circuit
precedent.   2


      The attorneys also asserted that they did not want to go against
Galloway’s instructions because they were afraid that Galloway would react
negatively and possibly disrupt the proceeding (and, presumably, thereby hurt
his own case) or attempt to harm the attorneys.                Malacek stated in her
deposition, however, that Galloway never explicitly said anything to indicate he
might become violent, and Jerry Davis claimed he was never afraid of Galloway.
      Having considered Galloway’s arguments under the Miller-El standard,
we conclude that he is not entitled to a COA on this ground. Reasonable jurists
could debate the constitutional appropriateness of withholding evidence out of
simple fear that Galloway would harm his attorneys.                 The district court,
however, also considered independent justifications for the attorneys’ decisions,
based on their conclusions that the potential mitigation evidence could hurt
Galloway’s case, and on the possibility that Galloway would disrupt the


2
  The district court referred to our precedents holding that a criminal defendant cannot
prevent his attorney from presenting evidence and later allege ineffective assistance. See,
e.g., Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir. 2007) (“[T]his court has held on
several occasions that a defendant cannot instruct his counsel not to present evidence at
trial and then later claim that his lawyer performed deficiently by following these
instructions.”), cert. denied, 128 S. Ct. 1087 (2008); Nixon v. Epps, 405 F.3d 318, 325–26
(5th Cir. 2005) (finding that counsel was not ineffective for failing to present additional
mitigating evidence over the defendant’s objection); Autry v. McKaskle, 727 F.2d 358, 361
(5th Cir. 1984) (“By no measure can [the defendant] block his lawyer’s efforts and later
claim the resulting performance was constitutionally deficient.”).

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proceedings if his instructions were not followed and thereby “portray him[self]
to the jury as a danger to society.” Considering all of the offered bases for
withholding the evidence, on their merits and in light of the prejudice
requirement, Galloway has not established “that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.”
Miller-El, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484). Accordingly, we deny
Galloway’s request for a COA on the issue of failure to present mitigation
evidence.
C.    Failure to investigate potential mitigation evidence
      Galloway has also alleged that trial counsel failed to conduct adequate
investigation into mitigation evidence, thus leaving valuable evidence
undiscovered. Galloway claims his attorneys would have discovered evidence of
childhood physical abuse, sexual abuse, educational problems, psychological
disorders, and alleged head trauma from a childhood car accident.
      With respect to evidence regarding Galloway’s childhood abuse,
educational problems, and the car accident, the district court held that Galloway
had not shown a reasonable probability that the evidence, had it been admitted,
would have caused a juror to reconsider his or her decision regarding the death
penalty. It also noted that such evidence would necessarily have cast Galloway’s
father in a negative light, and would have been contrary to Galloway’s
instructions. Therefore, even if the attorneys had discovered this evidence, it
concluded they still might not have been able to utilize this evidence during
sentencing.
      With regard to the evidence of Galloway’s alleged sexual abuse at the
hands of a neighbor, the district court found that counsel was not deficient in
failing to discover the information. The court noted that Galloway himself was
the only person with knowledge of the sexual abuse, and that Galloway failed to
disclose any such evidence to his attorneys despite their efforts to talk with him.

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      Finally, the district court held that the attorneys were not deficient in
failing to investigate Galloway’s psychological issues. The attorneys in fact hired
a psychologist, Dr. Hopewell, in an attempt to discover potentially mitigating
evidence of psychological disorders, but Galloway did not cooperate with the
evaluation.
      Having considered the arguments, we conclude that Galloway has not met
his burden of showing “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Miller-El, 537 U.S.
at 338 (quoting Slack, 529 U.S. at 484). Accordingly, we deny Galloway’s request
for a COA on the issue of his attorneys’ failure to investigate.
                              IV. CONCLUSION
      Jurists of reason would not find it debatable whether the district court was
correct in its ruling. Accordingly, Galloway’s request for a COA is DENIED.




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