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

                                                 FILED
                                                                         September 9, 2009

                                       No. 08-70011                    Charles R. Fulbruge III
                                                                               Clerk

ROBERT SIMON, JR

                                                   Petitioner-Appellant
v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS

                                                   Respondent-Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 2:04-cv-26


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Robert Simon, Jr. was convicted and sentenced to death for the murders
of Carl and Bobbie Joe Parker and their son Gregory Parker. The district court
denied Simon’s federal habeas petition, and he now seeks a Certificate of
Appealability (“COA”) on several ineffective-assistance-of-counsel claims.
Specifically, Simon claims that his counsel was ineffective in (1) failing to
investigate his history of familial abuse and present that history as mitigation


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-70011


evidence at sentencing, (2) failing to offer witnesses to corroborate his contention
that his confession was physically coerced, (3) failing to use extra for-cause
challenges at jury selection, and (4) failing to rehabilitate jurors who refused to
impose the death penalty.
      We grant a COA on Simon’s first claim. The Supreme Court of Mississippi
held that Simon’s trial counsel was not ineffective for failing to investigate
Simon’s history of familial abuse because there was no evidence that counsel
knew or should have known that such abuse took place. According to that court,
counsel could not be ineffective absent some reason to investigate Simon’s
history of abuse. As detailed below, we find it debatable whether the Supreme
Court of Mississippi’s decision was an objectively reasonable application of
Strickland v. Washington, 466 U.S. 668 (1984).
      As to Simon’s remaining claims, we deny a COA because the district
court’s resolution of these claims is not debatable among jurists of reason. We
therefore grant in part and deny in part Simon’s petition for a COA.
                               I. BACKGROUND
      The parties are familiar with the background of this case, and we will only
briefly review the relevant facts. Carl and Bobbie Joe Parker lived in Quitman
County, Mississippi with their children, Charlotte and Gregory Parker. On
February 2, 1990, a passing motorist saw that the Parkers’ house was on fire.
After the fire was extinguished, the bodies of all four family members were found
inside the home. Carl, Bobbie Joe, and Gregory had all died of gunshot wounds.
Charlotte, though shot three times, died of smoke inhalation.           Simon and
another man, Anthony Carr, were soon arrested and charged with the Parkers’
murder.
      In June 1990, the State tried Simon for the capital murder of only
Charlotte Parker, a case that we refer to as Simon I. The jury found Simon


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guilty but could not reach a unanimous decision on his sentence. The trial court
therefore sentenced Simon to life imprisonment for Charlotte Parker’s murder.
      After Simon I, the State tried Carr for the capital murder of all four
Parkers. A jury convicted Carr on all four counts and returned a sentence of
death on each count.
      Finally came Simon’s second trial, the one from which the present
proceedings arise.   In October 1990, the State tried Simon for the capital
murders of Carl Parker, Bobbie Joe Parker, and Gregory Parker, a case that we
refer to as Simon II. A jury found Simon guilty on all three counts and returned
a sentence of death on each count. The Supreme Court of Mississippi later
affirmed Simon’s conviction and sentence. See Simon v. State (Simon II, Direct
Appeal), 688 So. 2d 791 (Miss.), cert. denied, 521 U.S. 1126 (1997).
      Simon later filed a pro se petition for habeas relief in the Supreme Court
of Mississippi. See Simon v. State (Simon II, State Habeas), 857 So. 2d 668
(Miss. 2003). The court denied Simon’s petition, and he then filed a federal
habeas petition in the Northern District of Mississippi. See Simon v. Epps
(Simon II, Federal Habeas), No. 2:04-cv-26, 2007 WL 4292498 (N.D. Miss. Nov.
30, 2007). The district court denied relief on all of Simon’s claims and later
denied a COA to this court. See Simon v. Epps (Simon II, Denial of COA), No.
2:04-cv-26, 2008 WL 762182 (N.D. Miss. Mar. 19, 2008). Simon now appeals that
denial of a COA.
                       II. STANDARD OF REVIEW
      To obtain habeas relief under 28 U.S.C. § 2254, Simon must show the
Supreme Court of Mississippi’s resolution of his claims was contrary to, or
involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). But before we have
jurisdiction to rule on the merits of his appeal, Simon must obtain a COA by


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making “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).         “Under the
controlling standard, a petitioner must show that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 336 (alteration and
quotation marks omitted). “A prisoner seeking a COA must prove something
more than the absence of frivolity or the existence of mere good faith on his or
her part.”   Id. at 338 (quotation marks omitted).          “The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Id. (quotation marks omitted).
“[A] claim can be debatable even though every jurist of reason might agree, after
the COA has been granted and the case has received full consideration, that
petitioner will not prevail.” Id. Finally, “any doubts as to whether a COA should
issue must be resolved in [the petitioner’s] favor.” Ramirez v. Dretke, 398 F.3d
691, 694 (5th Cir. 2005) (alteration in original, quotation marks omitted).
                               III. DISCUSSION
      Although he presents them as three arguments, Simon essentially raises
four claims of ineffective assistance of counsel. He primarily contends that his
trial counsel failed to adequately investigate his history of familial abuse and
thus did not present a proper case for mitigation at sentencing. Second, Simon
contends that his trial counsel was ineffective in failing to corroborate his claims
that his confession was physically coerced. Third, Simon contends that his trial
counsel failed to use extra for-cause challenges to strike biased jurors. Finally,
Simon asserts that his counsel failed to adequately rehabilitate jurors who had
refused to impose the death penalty.
      All of Simon’s claims are governed by Strickland’s two-part standard for


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ineffective assistance. See Strickland, 466 U.S. at 687. Under this standard,
Simon must show (1) that his counsel’s performance was deficient, and (2) that
this deficient performance prejudiced him. Id. For counsel’s performance to be
deficient, he or she must commit “errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id.   We judge counsel’s performance against “an objective standard of
reasonableness.” Id. at 688. There are no strict guidelines for making this
determination; what constitutes deficient performance is fluid and evolving, and
we must measure counsel’s performance against the “prevailing professional
norms” of legal practice. Id.; see also Rompilla v. Beard, 545 U.S. 374, 380–81
(2005).   Indeed, the Supreme Court has emphasized that there are no
“mechanical rules” when addressing a claim of ineffective assistance:
      [T]he ultimate focus of inquiry must be on the fundamental fairness
      of the proceeding whose result is being challenged. In every case
      the court should be concerned with whether, despite the strong
      presumption of reliability, the result of the particular proceeding is
      unreliable because of a breakdown in the adversarial process that
      our system counts on to produce just results.
Strickland, 466 U.S. at 696. In making this determination, we must consider all
relevant circumstances, including, for example, practice guides from the
American Bar Association. Id. at 688; see, e.g., A MERICAN B AR A SSOCIATION
G UIDELINES FOR THE A PPOINTMENT AND P ERFORMANCE OF C OUNSEL IN D EATH
P ENALTY C ASES (1989). Still, no single set of rules can definitively determine the
sufficiency of counsel’s performance. Strickland, 466 U.S. at 688–89. And
importantly, our assessment of counsel’s performance is “highly deferential.” Id.
at 689.   We must avoid the biasing effect of hindsight, and we therefore
entertain a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action

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might be considered sound trial strategy.” Id. (quotation marks omitted).
      As to Strickland’s second requirement, for counsel’s deficient performance
to prejudice a defendant, counsel’s errors must be “so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Under
Strickland’s prejudice requirement, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id.
      Finally, when a petitioner cannot satisfy one component of Strickland,
there is no need to assess the other. Id. at 697, 700.
A.    Failure to Investigate
      Simon first argues that his trial counsel rendered ineffective assistance
during the sentencing phase of his trial. Simon asserts that his counsel failed
to conduct an investigation into his background, wherein counsel would have
found a history of abuse at the hands of Simon’s father. According to Simon, his
counsel’s failure to uncover this history of abuse resulted in the presentation of
a woefully weak case for mitigation. Simon further contends that, if the jury had
heard of his history of abuse, there is a reasonable probability that it would not
have sentenced him to death.
      The Supreme Court of Mississippi denied Simon’s claim on this point.
According to that court, it was reasonable for counsel not to investigate Simon’s
history of abuse because Simon had not told his counsel of this abuse. In the
court’s words,
      [W]e do not find that trial counsel’s conduct fell below the ordinary
      standard of assistance of counsel because he did not
      inquire—without prompting—into the possibility of abuse of his
      client as a child. . . . Simon has failed to show in the record and in
      his affidavits that his counsel knew or had reason to know of his
      past abuse given his and [the defense psychologist’s] investigation.

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Simon II (State Habeas), 857 So. 2d at 685. According to the court, because
there was no evidence that Simon’s trial counsel had any reason to investigate
Simon’s past, he could not be ineffective for failing to do so. Id. The court also
held, alternatively, that Simon could not show prejudice on this claim. Id.
According to the court, “[e]vidence of Simon’s abuse as a child . . . would not have
had a reasonable probability of changing the jury’s sentence from death to life
had it been presented to them.” Id.
      The district court agreed with the Supreme Court of Mississippi.
According to the district court, “[t]he fact that counsel did not uncover or present
evidence of an abusive family history is not indicative of a lack of trial
preparation where counsel was given no information that would suggest such
abuse had been present.” Simon II (Federal Habeas), 2007 WL 4292498, at *19.
The district court also held that Simon failed to show that the Supreme Court
of Mississippi had erred in its determination that counsel’s purported failings
prejudiced him. Id.
      We find the district court’s resolution of this claim debatable, and we
therefore grant a COA.      At issue is counsel’s duty to investigate a capital
defendant’s history of abuse in preparing a case for mitigation at sentencing.
Like any claim of ineffective assistance, we must assess the reasonableness of
counsel’s investigation in light of all relevant circumstances. One relevant
circumstance, of course, is the information that the defendant has provided his
or her trial counsel.     As the Supreme Court noted in Strickland, “the
reasonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions”:
      Counsel’s actions are usually based, quite properly, on informed
      strategic choices made by the defendant and on information
      supplied by the defendant. In particular, what investigation
      decisions are reasonable depends critically on such information. For


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      example, when the facts that support a certain potential line of
      defense are generally known to counsel because of what the
      defendant has said, the need for further investigation may be
      considerably diminished or eliminated altogether. And when a
      defendant has given counsel reason to believe that pursuing certain
      investigations would be fruitless or even harmful, counsel’s failure
      to pursue those investigations may not later be challenged as
      unreasonable. In short, inquiry into counsel’s conversations with
      the defendant may be critical to a proper assessment of counsel’s
      investigation decisions, just as it may be critical to a proper
      assessment of counsel’s other litigation decisions.
466 U.S. at 691.
      That being said, the information the defendant provides to counsel is not
dispositive, and Strickland did not create a per se rule that counsel’s duty to
investigate begins and ends with information gleaned from the defendant him-
or herself. Indeed, such a bright-line rule would be inimical to Strickland’s
mandate of case-by-case consideration. Instead, counsel’s decision to investigate,
like all others, must be reasonable in light of all the relevant circumstances:
      [S]trategic choices made after thorough investigation of law and
      facts relevant to plausible options are virtually unchallengeable;
      and strategic choices made after less than complete investigation
      are reasonable precisely to the extent that reasonable professional
      judgments support the limitations on investigation. In other words,
      counsel has a duty to make reasonable investigations or to make a
      reasonable decision that makes particular investigations
      unnecessary. In any ineffectiveness case, a particular decision not
      to investigate must be directly assessed for reasonableness in all the
      circumstances, applying a heavy measure of deference to counsel’s
      judgments.
Id. at 690–91; see also Rompilla, 545 U.S. at 383 (“[R]easonably diligent counsel
may draw a line when they have good reason to think further investigation
would be a waste.”).
      Along these lines, several post-Strickland decisions from the Supreme
Court make clear that counsel’s decision to cease investigating a capital

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defendant’s past—or even not to investigate it at all—must be informed and
reasonable. See, e.g., Rompilla, 545 U.S. 374; Williams v. Taylor, 529 U.S. 362
(2000). Of particular relevance is Wiggins v. Smith, 539 U.S. 510 (2003), in
which the Court spoke at length of how we should evaluate counsel’s decision
regarding an investigation into mitigating evidence.        In Wiggins, a capital
defendant’s trial counsel did not investigate the defendant’s life history or family
background—which, it turns out, included a substantial history of abuse—and
therefore presented no evidence of abuse at sentencing. Id. at 516. In an
opinion by Justice O’Connor, the Court held that counsel’s assistance was
ineffective, as there was no reason or justification for counsel’s failure to look
into the defendant’s past. The Court emphasized that the pertinent question
was “whether the investigation supporting counsel’s decision not to introduce
mitigating evidence of [a defendant’s] background was itself reasonable.” Id. at
523. Thus, the fact that counsel acquires some information does not necessarily
render counsel effective. Id. at 527. Instead, counsel must have sufficient
information from which they could make a reasoned strategic decision not to
pursue additional evidence of abuse:
      In assessing the reasonableness of an attorney’s investigation, . . .
      a court must consider not only the quantum of evidence already
      known to counsel, but also whether the known evidence would lead
      a reasonable attorney to investigate further. Even assuming
      [counsel in Wiggins] limited the scope of their investigation for
      strategic reasons, Strickland does not establish that a cursory
      investigation automatically justifies a tactical decision with respect
      to sentencing strategy. Rather, a reviewing court must consider the
      reasonableness of the investigation said to support that strategy.
Id. In other words, courts must determine whether “the decision to cease all
investigation . . . actually demonstrated reasonable professional judgment.” Id.
      The Wiggins Court made clear that counsel is not required “to investigate
every conceivable line of mitigating evidence no matter how unlikely the effort

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would be to assist the defendant at sentencing.” Id. at 533. It also noted that
Strickland does not require “defense counsel to present mitigating evidence at
sentencing in every case.” Id. But, as the Court had previously stated in
Strickland, “strategic choices made after less than complete investigation are
reasonable only to the extent that reasonable professional judgments support the
limitations on investigation. A decision not to investigate thus ‘must be directly
assessed for reasonableness in all the circumstances.’”        Id. (citations and
quotation marks omitted).
      As to the trial counsel in Wiggins, the Court found that their investigation
was not reasonable, as the defendant’s “counsel abandoned their investigation
of [the defendant’s] background after having acquired only rudimentary
knowledge of his history from a narrow set of sources.” Id. at 524. Moreover,
counsel’s limited investigation revealed leads that any competent attorney would
have pursued, as doing so “was necessary to making an informed choice among
possible defenses.” Id. at 525. Indeed, counsel in Wiggins found no evidence
that a mitigation case would have been counterproductive, such that they had
no reason to cease their investigation.      Id.   In brief, counsel’s “failure to
investigate thoroughly resulted from inattention, not reasoned strategic
judgment.” Id. at 526.
      In the present case, the actual contours of Simon’s trial counsel’s
investigation into his history of familial abuse is unclear. In his petition to the
Supreme Court of Mississippi, Simon attached several statements from family
members who relayed stories of abuse and said that Simon’s counsel never
contacted them. The Supreme Court of Mississippi did not order an evidentiary
hearing on the matter. Instead, taking the statements of Simon’s family as true,
the court held that Simon’s trial counsel was not ineffective because there was
no evidence “that Simon’s trial counsel was ever told before or during the


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sentencing phase of trial that Simon was abused as a child.” Simon II (State
Habeas), 857 So. 2d at 685. In so doing, the Supreme Court of Mississippi’s
decision might suggest that even if Simon’s trial counsel made no investigation
into Simon’s history of abuse, the decision to do so was justified because there
was no evidence that counsel was aware of such a history. We conclude that the
question of whether the Supreme Court of Mississippi reasonably applied
Strickland’s deficient-performance prong is debatable among jurists of reason.
      As to prejudice, the Supreme Court of Mississippi held that any evidence
of familial abuse—even if further developed at an evidentiary hearing—would
not have had a reasonable probability of altering the jury’s sentence when
considered against the heinousness of the crimes. See Simon II (State Habeas),
857 So. 2d at 685. But because Simon’s trial counsel presented no evidence of
abuse at sentencing, we conclude that it is debatable among jurists of reason
whether there is a reasonable probability that the development and presentation
of Simon’s history of abuse would have influenced the jury’s appraisal of Simon’s
moral culpability. Cf. Wiggins, 539 U.S. at 537–38.
      Without passing judgment on the Supreme Court of Mississippi’s decision,
we think that jurists of reason can debate the merits of Simon’s claim on this
point. We therefore grant a COA on Simon’s claim of ineffective assistance at
sentencing. We also request additional briefing on this claim and have included
detailed instructions in the Conclusion.
B.    Failure to Develop Evidence of Physical Coercion
      Simon next argues that his counsel was ineffective in failing to offer
witnesses to corroborate his assertion that the police physically coerced his
confession. Simon confessed to the Parkers’ murders shortly after his arrest.
Before the trial in Simon I, he moved to suppress the confession as coerced. At
the suppression hearing, Simon’s trial counsel focused primarily on the


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argument that the confession was psychologically, not physically, coerced. The
only evidence of physical coercion at the suppression hearing came from Simon’s
own testimony and a brief remark from another witness. The suppression
motion was ultimately unsuccessful. Later, during the Simon II trial, Simon’s
trial counsel did not argue that the confession was physically coerced, again
focusing on psychological coercion.
      Simon now contends that his trial counsel was ineffective because counsel
failed to offer the testimony of three witnesses—his mother, wife, and
brother—who would have corroborated Simon’s claim of physical coercion. In
three documents attached to his petition for federal habeas, Simon’s brother,
mother, and wife all assert that they visited Simon a “couple” of weeks after his
confession. These witnesses allege that Simon displayed visible signs of abuse
and had said that police had beaten him. Aaron Simon, Simon’s brother, stated
that Simon’s “face was bruised and swollen.” Moreover, Simon told Aaron “that
law enforcement had jumped on him and beaten him up.”            Finally, Aaron
asserted that he saw Simon shortly before his arrest and, at that time, Simon
showed none of the injuries that Aaron later saw.
      Rosie Lee Simon, Simon’s mother, stated that Simon’s “head was very
swollen from having been beaten.       His left eye was bruised, his hand was
shaking, and he said ‘They beat me up so bad.’” Rosie Lee noted that she is a
trained CNA and thus knows how to recognize signs of abuse. She also alleges
that she told Simon’s trial counsel of his injuries.
      Martha Simon, Simon’s wife, said in an unsigned statement that Simon
“had been badly beaten.” In her words,
      His head and face were swollen and I saw he was limping badly. He
      said the police had beaten him up. It was pitiful. His eyes and
      mouth were all swollen. I had a hard time understanding because
      his mouth was so swollen. I didn’t recognize him when I first saw


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      him.
Like Rosie Lee Simon, Martha Simon stated that she was trained to recognize
signs of abuse.
      In addressing this issue, the Supreme Court of Mississippi held that
Simon had established neither deficient performance nor prejudice. See Simon
II (State Habeas), 857 So. 2d at 686–87. As to the suppression hearing, the court
found that Simon’s family members’ testimony would have added nothing to the
evidence that counsel did introduce. Id. The court first noted that the family
members’ testimony was both self serving and hearsay, and it would likely have
drawn a successful objection from the prosecution. Id. at 687. Putting that issue
aside, the court found that the family members’ testimony would have merely
repeated what Simon had told them, which Simon had already introduced
through his own testimony. Id. According to the court, the only independent
information    in   their   testimony—personal      observations    of   Simon’s
injuries—would have been of little value. Id. The court also noted that these
injuries could have had sources other than the police. Id.
      As to the trial, the court again found that Simon’s family members’
testimony would not have survived an objection by the State. Id. As Simon did
not testify at the trial, his family members also could not have been used to
corroborate his claims of physical abuse. Id. Finally, the court noted that
Simon’s trial counsel would have had to overcome the adverse suppression
ruling. Id. The Supreme Court of Mississippi thus held that Simon’s trial
counsel’s decisions were strategic and therefore not deficient under Strickland.
Id.
      The court also addressed Strickland’s second component, prejudice. It
noted that Simon’s testimony at the suppression hearing was sufficient to raise
the issue of whether his confession was voluntary. Id. As to the trial, the court


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determined that even if the jury had heard the family members’ testimony, it
would have little reason to disregard Simon’s confession because “there [was]
little else in the record to establish its involuntariness.”        Id.   Moreover,
regardless of the confession, there was substantial evidence of Simon’s guilt:
      Had Simon’s confession to police been excluded, there would still
      exist his inculpatory statements to his cellmate, his presence during
      the robbery to get the guns used in the murders, the Parkers’
      belongings found at his Memphis apartment, his observed flight
      from the Parkers’ pickup truck the night of the murder, and the fact
      that he was wearing some of the clothing stolen from the Parkers
      when he was arrested.
Id. Thus, the court concluded, “Simon fail[ed] to demonstrate how trial counsel’s
failure to call his family members at the suppression hearing and trial
prejudiced the trial court’s ruling on the issue or the outcome of the trial itself.”
Id.
      The district court held that the Supreme Court of Mississippi had not
erred in its assessment of this ineffective-assistance claim. The court paid
special attention to the details of Simon’s injuries, noting that the injuries
Simon’s family members observed (swollen eyes and mouth) were inconsistent
with Simon’s claims of abuse (choking and being placed on the floor with a boot
or knee in his back). See Simon II (Federal Habeas), 2007 WL 4292498, at *14.
The district court also looked to the time frame of the injuries; Simon’s
confession (and thus any concomitant abuse) occurred two days after his arrest,
yet his family members did not see him until two weeks after his arrest. Id. The
court further noted that Simon made his initial appearance before a judge one
hour after giving his statement but there was nothing in the record to suggest
that he had been beaten prior to that appearance. Id. Finally, the district court
thought that there was sufficient testimony to show that Simon’s confession was
voluntary.   Id.   Thus, the district court concluded, the Supreme Court of


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Mississippi did not err in its application of Strickland. Id. The district court
later denied a COA on this claim, concluding that the decision whether to call
the witnesses was one of trial strategy and that Simon had not demonstrated
that the family members’ testimony would be either admissible or favorable. See
Simon II (Federal Habeas, Denial of COA), 2008 WL 762182, at *6.
      We do not find the district court’s resolution of this issue to be debatable
among jurists of reason. It appears that Simon’s trial counsel had two possible
theories for arguing that the confession was coerced: psychological and physical.
The case for psychological coercion was not insubstantial. At the suppression
hearing, Simon’s trial counsel pushed the theory that fear of mob violence caused
Simon to confess. The testimony of various witnesses indicates that members
of the community were incensed at the Parkers’ murder and that there was a
potential for violence against the suspects.        Simon’s trial counsel also
emphasized the questionable circumstances of Simon’s confession; police did not
present Simon to a judge until after the confession, and his counsel implied that
they were trying to extract a confession before Simon invoked his right to
counsel. Finally, Simon’s trial counsel suggested various racial undertones in
Simon’s arrest and confession.
      In contrast, the case for physical coercion was quite weak. Only two
witnesses mentioned that Simon had been physically abused. The first was only
in passing; Robert Brown, who shared a cell with Simon shortly after he
confessed, testified that Simon had said that the interrogators had beaten him.
The only other testimony as to physical abuse came from Simon himself. The
first alleged act of abuse occurred over a day before Simon’s confession. Simon
testified that, while being held awaiting transfer to another prison, a police
officer slapped him in the right ear. The other two alleged acts of abuse occurred
during the interrogation that led to Simon’s confession; Simon testified that one


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police officer choked him and threw him to the ground, at which point another
officer put his knee or boot in Simon’s back.
      On rebuttal, every officer accused of abusing Simon resolutely denied any
misconduct, as did any officers present when the abuse allegedly took place.
Before hearing from Simon’s psychologist (who had to testify later due to a
scheduling conflict), the trial court expressed its belief that Simon had
voluntarily confessed.   But it reserved a final judgment on the issue until
hearing from the psychologist. Although the psychologist’s testimony (as well
as the parties’ final arguments and the court’s ruling) do not appear to be in the
record, we know that the court eventually ruled that Simon’s confession was
voluntary.
      The testimony of Simon’s family members would have added little to his
case for physical coercion. Whatever it might have added would also be easily
challenged on cross-examination. The family members saw Simon roughly two
weeks after his confession—and the alleged abuse—occurred. A number of
intervening acts (including, for example, later beatings from police or prisoners)
could have caused the injuries. Further, no one who saw Simon shortly after he
confessed—including the counsel appointed after the confession—said anything
about physical injuries like those described in the family members’ statements.
Indeed, after the confession and alleged beating, Simon was brought before a
judge for his initial appearance, and he points to nothing in the record where
anyone even remarked on any signs of abuse.
      In short, Simon has not shown that his trial counsel made anything other
than a tactical decision to pursue the relatively stronger theory of psychological
coercion over the relatively weaker theory of physical coercion.        Although
ultimately unsuccessful, Simon’s trial counsel presented a reasonable argument
that police concocted an atmosphere of fear that led Simon to confess.         In


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contrast, Simon’s trial counsel had little evidence to support an argument that
the confession was physically coerced, and most of it (including the testimony of
Simon’s family members) was weak.            Moreover, Simon’s trial counsel was
probably reasonably reluctant to offer the testimony of Simon’s family members,
as their statements on physical coercion would be quite open to challenge on
cross-examination. We do not find the district court’s resolution of this claim
debatable and therefore deny a COA.
C.    Failure to Use Extra For-Cause Challenges at Jury Selection
      Simon next argues that his counsel was ineffective in failing to use extra
for-cause challenges at jury selection. The parties do not dispute that, before the
trial in Simon I, the State engaged in substantial misconduct in the form of
pretrial publicity.   Shortly after Simon’s arrest, a prosecutor held a press
conference at which he announced the murders and Simon’s link to the crimes.
As the prosecutor said nothing about the presumption of innocence, this press
conference violated local ethical canons.       Police officials were also publicly
commenting on the crimes in violation of local rules. Finally, after the trial court
had set up procedures to protect Simon from improper disclosures, the State
improperly filed a public motion containing false information about Simon,
including an alleged jailhouse confession. Upon finding that the State had
engaged in misconduct, the trial judge moved the trial to another county.
      Simon asserts that the State conceded that any juror exposed to pretrial
publicity should be struck for cause. When Simon’s trial counsel later tried to
challenge five jurors exposed to pretrial publicity, the trial court determined that
the challenged jurors could set aside what they had heard and denied the for-
cause challenges. Simon contends that his counsel should have invoked the
State’s alleged concession that any juror exposed to pretrial publicity should be
struck for cause. According to Simon, counsel’s failure to do so was deficient


                                        17
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performance that resulted in the seating of possibly prejudiced jurors.
      The Supreme Court of Mississippi rejected Simon’s argument on this
point. See Simon II (State Habeas), 857 So. 2d at 690–92. The court found that
the State had indeed made a concession regarding the striking of jurors exposed
to pretrial publicity, but not to the extent that Simon suggested. Id. at 691.
Specifically, the State admitted that any juror who was contaminated by pretrial
publicity (such as one who could not lay aside what she had heard or who had
already formed an opinion) should be struck for cause, but did not concede that
Simon was entitled to extra or special for-cause challenges for any juror exposed
to pretrial publicity. In the court’s words,
      It is a fair reading of the transcript that the State made such a
      concession during consideration of the motion to dismiss. From the
      context of the hearing, we find that the State was merely repeating
      the standard routinely applied by trial courts to motions to strike
      jurors “for cause.”
Id. at 691–92. According to the Supreme Court of Mississippi, then, the only
concession that Simon’s counsel could invoke was the State’s concession that the
normal standard for for-cause challenges applied to jurors exposed to pretrial
publicity.
      The court went on to find that any failure to remind the trial judge of this
concession was not deficient performance. It first noted that striking jurors for
cause is left to the discretion of the trial judge, and none of the jurors in question
met the standard required for a for-cause strike. Id. at 692. The court stated
that “[e]ach of the jurors in question indicated that they could put aside any
conclusions they had formed from their exposure to the publicity in this case and
be fair and impartial during the trial.” Id. It also noted that Simon’s counsel
had sufficient peremptory challenges to strike each of the jurors unsuccessfully
challenged for cause. Id. According to the court, “[t]he fact that these particular



                                         18
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jurors were ultimately seated without being peremptorily struck indicates they
were satisfactory to Simon from a strategic standpoint.” Id. And as to Simon’s
counsel’s failure to invoke any concession by the State, the court found that the
success of such an invocation depended on the discretion of the trial judge:
      If Simon’s trial counsel had reminded the trial court that the State
      had made this concession before the change in venue, it is possible
      the judge might have stricken the jurors “for cause.” However, the
      trial judge was certainly not bound to enforce the State’s concession.
Id. The court thus concluded that the State had not conceded that Simon should
have extra or special for-cause challenges and that any failure by Simon’s
counsel to invoke the State’s actual concession was not deficient:
      [W]e conclude that the context of the concession by the State did not
      empower Simon’s trial counsel to automatically exclude “for cause”
      all members of the venire exposed to pretrial publicity. Trial
      counsel was not deficient for failing to remind the trial judge of a
      non-binding and unenforceable concession made by the State in the
      course of discussing options to remove the taint of pretrial publicity
      from the trial jurors.
Id. Finally, the court noted that Simon could not satisfy Strickland’s prejudice
component.    According to the court, Simon’s counsel’s failure to strike the
challenged jurors peremptorily “indicate[d] a non-prejudicial strategic decision
was made to include them on the jury panel.” Id.
      The district court agreed with the Supreme Court of Mississippi that “[t]he
transcript of the pretrial hearing makes it clear that the prosecutor was merely
asserting that those jurors tainted by pretrial publicity should be removed for
cause.”   Simon II (Federal Habeas), 2007 WL 4292498, at *10.           The court
therefore concluded that Simon’s “[t]rial counsel was not deficient in failing to
remind the trial court that the prosecutor knew the standard for removing jurors
for cause.” Id. The district court also found no prejudice, believing that the real
issue was “whether the jury that sat was impartial.” Id. The court saw “no


                                        19
                                  No. 08-70011


indication that the seated jurors were not impartial” and dismissed any notion
that the use of peremptory challenges to remove certain jurors entitled Simon
to relief. Id.
      Simon does not indicate where in the record this concession took place.
But both the Supreme Court of Mississippi and the district court looked to a
pretrial hearing where Simon and his co-defendant, Anthony Carr, moved to
dismiss their indictments due to improper pretrial publicity.        During that
hearing, the trial court described a section of the State’s brief which arguably
includes the concession that Simon alleges:
      I do understand that the State admits in its brief that one of the
      remedial measures that might be taken, on page five of the
      brief,[ ]counsel states that jurors may be dismissed for cause during
      voir dire if pre-trial publicity has reached a prospective juror. That
      may make it difficult throughout, but I understand that’s an
      admission as a remedial measure. And, further on the same page
      that jurors should be excused if there is any doubt about their
      impartiality, referring to the State’s brief at this time.
Later, in an exchange with the court about a potential change of venue, the State
seemed to clarify the statement in its brief:
      BY THE COURT: And, I believe you suggested in your brief that if
      we go to another county, and if we find any juror during voir dire
      that the pre-trial publicity has reached, that juror should be excused
      for cause. That’s what your brief says.
      BY [THE STATE]: Your Honor, of course—
      BY THE COURT: —And, otherwise, so we may go to two or three
      counties.
      BY [THE STATE]: Your Honor, if that juror when questioned on
      voir dire says that that juror has been contaminated with the virus
      and cannot lay aside anything that that juror may have heard or
      read, and has formed an opinion, well, certainly, that juror would
      have to be excused. And, if that juror—
      BY THE COURT:        —That’s the normal thing.       What remedial


                                       20
                                 No. 08-70011


      measures do we have because of this, regardless of how it came
      about? I’m asking counsel for both sides. What is the remedy,
      because it is out, because all these things through these filings of
      these two responses, which should never have been.
(emphasis added). Reading these two sections in tandem, it appears that Simon
has misconstrued the State’s admission. Any concession regarding striking
jurors exposed to pretrial publicity was merely an admission of the normal
standard for striking such jurors. The State did not agree to a remedy in the
form of striking any juror exposed to any pretrial publicity. Indeed, throughout
its closing argument, the State repeatedly emphasized that the proper remedy
for the pretrial publicity was a change of venue. Although the State at one point
also said that “extensive voir dire” would be appropriate, Simon points us to
nowhere else in the record where the State indicates that any juror exposed to
any pretrial publicity should be struck for cause.
      Simon’s claim on this point thus fails at step one; his counsel could not
have rendered ineffective assistance by failing to invoke a concession that the
State never actually made.      The Supreme Court of Mississippi correctly
addressed this claim, and the district court’s resolution is not debatable. We
therefore deny a COA.
D.    Failure to Rehabilitate Prospective Jurors
      Finally, Simon contends that his counsel provided ineffective assistance
as to the rehabilitation of several potential jurors. During voir dire, several
jurors indicated that they would refuse to vote for the death penalty. Simon’s
trial counsel attempted to rehabilitate a particular juror who had expressed such
a refusal. After Simon’s counsel asked this juror whether she could “consider”
imposing the death penalty even though she did not believe in it, the State
objected to counsel’s use of the word “consider.” The trial judge sustained the
objection, noting that the substance of the question had already been asked and


                                       21
                                   No. 08-70011


answered three times. Simon’s trial counsel then moved on to questioning the
venire about exposure to pretrial publicity.
      Simon raises three issues stemming from this effort at rehabilitation. He
first argues that his counsel rendered ineffective assistance by not objecting to
being “cut off” or not asking the same question of other jurors who had expressed
a reluctance to impose the death penalty. Second, Simon contends that after
these jurors had been struck for cause because his counsel had only partially
rehabilitated them, his counsel rendered ineffective assistance by not pointing
out to the trial judge that he had cut short efforts at rehabilitation. Finally,
Simon asserts that the State was allowed to rehabilitate jurors that Simon
wished to strike for cause, and his counsel rendered ineffective assistance by not
objecting to the trial court’s disparate allowance of rehabilitation.
      1.     Failure to object when “cut off”
      As to Simon’s first claim, he suggests that his counsel should have
persisted in questioning potential jurors about their views on the death penalty
or objected to the trial judge’s “cutting off” his opportunity to rehabilitate jurors
with beliefs against the death penalty. Simon notes that five jurors whom the
State later challenged due to their refusal to impose the death penalty had
indicated that they could follow the court’s instructions and determine guilt
without regard to their views on the death penalty:             Ethridge, Craigen,
Dickerson, Tinnell, and Williams.       Simon suggests that these jurors were
partially rehabilitated and that his trial counsel should have continued
attempting to rehabilitate them. He contends that counsel’s failure to do so
resulted in five jurors being needlessly struck for cause.
      The Supreme Court of Mississippi rejected this claim, noting that the issue
Simon suggests his counsel should have continued to pursue—whether those
prospective jurors could ever impose the death penalty—“had indeed been


                                         22
                                  No. 08-70011


covered several times by the trial Court, the State, and Simon’s trial counsel
before” counsel was cut off. See Simon II (State Habeas), 857 So. 2d at 693.
Moreover, the jurors who Simon argues his counsel should have questioned were
all “straightforward and unwavering in their opposition to imposing the death
penalty.” Id. Thus, according to the court, “the [trial] judge did not err in
cutting off Simon’s trial counsel’s last attempt to rehabilitate them, nor was
counsel’s assistance deficient for failing to object to this preemption.” Id.
      The district court agreed with the Supreme Court of Mississippi, stating
that the record did not support Simon’s contentions. See Simon II (Federal
Habeas), 2007 WL 4292498, at *12. Indeed, the district court found Simon to be
“tak[ing] liberties with the facts of the case by characterizing the trial court’s
statements as impeding his opportunity to rehabilitate potential jurors.” Id.
The district court thus found it reasonable for Simon’s trial counsel to cease this
line of questioning.
      We do not find the district court’s resolution of this issue debatable. The
pertinent issue—whether particular jurors would refuse to impose the death
penalty—had twice been covered before Simon’s trial counsel began his voir dire.
First, during the court’s voir dire, the trial judge asked the venirepersons
whether they would be able to impose a sentence of death.                  Several
unequivocally indicated that they were not. Later, during the State’s voir dire,
counsel for the State twice asked the jurors whether they had changed their
mind about their stated inability to return a sentence of death with no response.
The State also asked whether anyone (besides those who had indicated earlier)
could not impose a sentence of death, and one juror responded that she could not.
      When Simon’s trial counsel began discussing the issue, he first asked who
on the venire did not believe in the death penalty.       After roughly a dozen
affirmative responses, counsel then asked whether those who did not believe in


                                        23
                                  No. 08-70011


the death penalty could follow the judge’s instructions and decide guilt or
innocence regardless of their feelings about the death penalty. Counsel received
varying answers, some yes, some no, some not knowing. Counsel then asked the
jurors whether they understood that a cross section of the community includes
people who do not believe in the death penalty. The State objected to this
question, and the trial judge sustained the objection.
      Simon’s trial counsel then attempted to restate the question to one
particular juror:
      Now, those people that I just asked about the death penalty, the
      ones who do not believe in the death penalty, if you’re selected on
      the jury, even though you do not believe in the death penalty—Ms.
      Ethridge, could you follow the law and consider whether or not it’s
      appropriate or not, even though you don’t believe in it.
The State objected to this question, noting that “the word ‘consider’ is not a part
of it.” The court then sustained the objection in detail:
      JUDGE PEARSON:          The question has been asked about three
      different ways.
      MR. WALLS [Simon’s trial counsel]: Your Honor, that’s the
      question I wanted to pose to all those other jurors. Has the Court
      ruled I shouldn’t ask that question?
      JUDGE PEARSON: The Court has asked this question, Mr. Walls,
      and this is the third different way that you’ve asked the same
      question. I’m sustaining the objection.
      MR. WALLS: All right. I have one other area, two quickly that I
      want to go into. . . .
Simon’s trial counsel then went on to ask the venirepersons about what they had
heard regarding the case.
      Under these circumstances, it was not unreasonable for Simon’s trial
counsel to cease his efforts at rehabilitation. The substance of the pertinent
question—whether jurors would refuse to return a sentence of death—had



                                        24
                                    No. 08-70011


already been covered. It was reasonable for counsel to move on to a different
issue.     Had Simon’s trial counsel persisted in the above-quoted line of
questioning, he likely would have drawn additional objections that the trial
judge would have sustained. Instead of antagonizing the trial judge in front of
potential jurors, counsel reasonably decided to move on.
         Further, even if Simon’s trial counsel could have tried to rehabilitate
several of the jurors, his failure to do so was not deficient performance. A
potential juror can be excused for cause if his or her views on the death penalty
would prevent or substantially impair the performance of his or her duties.
Wainwright v. Witt, 469 U.S. 412, 424 (1985); Williams v. Collins, 16 F.3d 626,
633 (5th Cir. 1994). A juror whose views on the death penalty prevent him or
her from returning a sentence of death is therefore excusable for cause. See
Williams, 16 F.3d at 633. And where attempts to rehabilitate a juror who has
refused to impose the death penalty would be futile, refusal to engage in such
useless efforts rarely constitutes deficient performance under Strickland. See
id.      Our review of the record reveals that four of the five jurors in
question—Ethridge, Craigen, Dickerson, and Tinnell—squarely indicated that
they could not return a sentence of death. Efforts to rehabilitate them would
have been fruitless, and the performance of Simon’s trial counsel was therefore
not deficient.
         The fifth potential juror, Williams, is a bit less clear. We could only find
evidence that Williams did not “believe” in the death penalty. But we need not
address whether counsel was deficient regarding Williams; even if we assume
deficient performance, Simon cannot show that the exclusion of Williams
prejudiced his trial. The jury in Simon’s trial was selected from the first forty-
four members of the venire, with three alternates selected from the first fifty-six.
Williams was juror number seventy-two. Thus, even if Simon’s trial counsel had


                                          25
                                   No. 08-70011


fully rehabilitated her, she would not have been on the jury that heard his case.
Any failure to rehabilitate Williams, then, could not have prejudiced Simon.
      2.     Failure to object to State’s for-cause challenges
      The State later challenged the five above-mentioned jurors for cause, and
the trial judge excused all five due to their refusal to impose the death penalty.
Simon contends that his counsel should have pointed out to the trial judge that
his efforts to rehabilitate these jurors were cut off, and the failure to do so
amounted to ineffective assistance.
      The Supreme Court of Mississippi held that it was not deficient
performance for Simon’s counsel not to object when the trial judge stated that
jurors struck for cause were only partially rehabilitated. See Simon II (State
Habeas), 857 So. 2d at 693. As “these jurors did not falter in their stated
opposition to imposing the death penalty,” they could be stricken for cause and
any cutting short of trial counsel’s questioning “had little, if any, effect upon the
adequacy of their voir dire.” Id. Thus, according to the court, Simon’s trial
“counsel did not render deficient performance in failing to remind the judge that
he had been cut off in his futile attempts to rehabilitate these jurors.” Id. The
district court agreed, stating that each of the jurors in question were unequivocal
in their inability to impose the death penalty. See Simon II (Federal Habeas),
2007 WL 4292498, at *12. The district court also noted that, in addition to
Williams, potential jurors Craigen, Dickerson, and Tinnell also were not among
the first forty-four venire members and therefore “would not have been reached
even if they had remained on the panel.” Id.
      We do not find the district court’s resolution of this issue debatable.
Again, four of the five potential jurors in question had squarely stated that they
would refuse to impose the death penalty. Any further efforts to rehabilitate
them would have been fruitless, and Simon’s trial counsel was therefore not


                                         26
                                  No. 08-70011


deficient in failing to point out that his efforts at rehabilitating them had been
cut short. And as to Williams, any failure to rehabilitate her did not prejudice
Simon.
      3.    Failure to object to disparate opportunities for rehabilitation
      Simon’s trial counsel challenged several jurors for cause on the ground
that they had said they would automatically impose the death penalty. The trial
judge gave the State the opportunity to rehabilitate some of these jurors. Simon
again contends that his trial counsel should have pointed out that the trial judge
had cut short his efforts at rehabilitating jurors, and that his failure to do so
constituted ineffective assistance.
      The Supreme Court of Mississippi found no deficiency in Simon’s trial
counsel’s performance on this matter. In the court’s words,
      The record reflects that during the time jurors were being stricken
      “for cause,” where the judge’s notes were inadequate, incomplete, or
      where he considered them untrustworthy, he would permit an
      individual voir dire of that juror to clear things up. No objections
      were made to this procedure by either party. It benefitted both
      sides. That Simon’s trial counsel did not object to the judge’s
      allowing individual voir dire of jurors—where the State was
      successful in clarifying the judge’s perception of those jurors in a
      way that possibly could be characterized as favorable to the
      State—was not the provision of deficient assistance.
See Simon II (State Habeas), 857 So. 2d at 693. The district court similarly
found no merit to Simon’s allegations of deficient performance when the State
was allowed to rehabilitate potential jurors, as both the State and defense were
allowed to conduct individual voir dire. See Simon II (Federal Habeas), 2007 WL
4292498, at *12.
      Again, we do not find the district court’s resolution of this issue debatable.
The record shows that counsel for the State and Simon’s trial counsel were both
given the opportunity to question jurors when there was some confusion as to


                                        27
                                  No. 08-70011


what the juror had said. Further, as to four of the five jurors in question, any
effort at rehabilitation would have been fruitless. And any failure to rehabilitate
Williams was harmless.
      In sum, the district court held that the Supreme Court of Mississippi’s
resolution of Simon’s ineffective assistance claims regarding rehabilitation was
proper. The district court’s resolution of this issue is not debatable, and we
therefore deny a COA on this claim.
                              IV. CONCLUSION
      We grant a COA on Simon’s claim that his counsel rendered ineffective
assistance at sentencing. We request that Simon provide supplemental briefing
on this claim within thirty days of the date of this order. The State should file
a response within fifteen days thereafter, and Simon may file a reply within ten
days after the State submits its brief. We ask that the parties address the
following issues:
1.    Under Strickland, was it deficient performance for Simon’s trial counsel
      not to investigate Simon’s history of familial abuse?
2.    If the jury had heard evidence of Simon’s history of familial abuse, is there
      a reasonable probability that it would not have returned a sentence of
      death?
3.    Considering that neither the Supreme Court of Mississippi nor the district
      court held an evidentiary hearing to determine the actual contours of
      Simon’s trial counsel’s investigation, what must we assume for the sake
      of this appeal? Further, if we find Simon’s claims to be meritorious,
      should we remand his petition to the district court for an evidentiary
      hearing?
We deny Simon’s request for a COA on his remaining claims of ineffective
assistance. The certificate of appealability is therefore GRANTED in part and


                                        28
                               No. 08-70011


DENIED in part, and additional briefing is requested.
     GRANTED in part, DENIED in part, additional briefing requested.




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