     Case: 15-70001      Document: 00513072004         Page: 1    Date Filed: 06/09/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-70001                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 9, 2015
                                                                           Lyle W. Cayce
JAMES GARRETT FREEMAN,                                                          Clerk
              Petitioner–Appellant,
versus
WILLIAM STEPHENS, Director,
 Texas Department of Criminal Justice, Correctional Institutions Division,
              Respondent–Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-3784




Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*

       James Freeman seeks a certificate of appealability (“COA”) to challenge
the denial of federal habeas corpus relief on his claim of ineffective assistance
of counsel (“IAC”). The district court denied the habeas petition on the merits,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 15-70001      Document: 00513072004        Page: 2     Date Filed: 06/09/2015



                                     No. 15-70001
concluding that the state habeas court reasonably held that Freeman had
failed to satisfy either prong of his IAC claim. Because reasonable jurists could
not debate whether Freeman’s petition should have been resolved differently
or that the issue deserves encouragement to proceed further, we deny a COA.

                                            I.
                                            A.
       The Texas Court of Criminal Appeals (“CCA”) set out the basic facts in
its opinion affirming Freeman’s conviction and sentence. 1 In brief, when a
game warden attempted to pull Freeman over, suspecting that he had dis-
charged a gun from his truck, Freeman fled and led officers on a ninety-minute
high-speed chase. After Freeman’s truck was finally disabled from running
over a spike strip, he emerged firing a handgun at officers, emptying the mag-
azine as he used his vehicle for cover. Officers returned fire, and Freeman re-
emerged shooting an AK-47 assault rifle. As a second warden attempted to
return fire, Freeman shot and killed him. The shootout was captured on video
by one officer’s dashboard camera. Freeman ran and was apprehended.

                                            B.
       Freeman hired two experienced criminal defense attorneys, Stanley
Schneider and Lee Cox. According to the state court, Schneider had “an excel-
lent reputation” and “had previous capital murder trial and appellate experi-
ence.” For the liability phase, their strategy was to argue that Freeman had
not intended to kill anyone but was depressed and suicidal and had fled and
shot in the officers’ direction to induce them to shoot and kill him in return—




       1 Freeman v. State, 340 S.W.3d 717, 721–22 (Tex. Crim. App. 2011), cert. denied, 132
S. Ct. 1099 (2012).
                                            2
     Case: 15-70001       Document: 00513072004          Page: 3     Date Filed: 06/09/2015



                                       No. 15-70001
suicide by cop. 2        In preparation, defense counsel hired a mitigation
investigator, Gerald Byington, and three psychological experts: Dr. Jerome
Brown, Dr. Vivian Lord, and Dr. Daneen Milam.

       Brown, a licensed clinical psychologist, interviewed Freeman and mem-
bers of his family, administered psychological tests, and reviewed relevant
medical records. Brown testified during the liability phase that, though Free-
man did not show signs of personality disorder or mental illness, he was moder-
ately depressed around the time of the shooting and experienced suicidal idea-
tion. Brown stated that those feelings, combined with alcohol abuse, resulted
in impulsive and reckless behavior. Thus, in Brown’s view, Freeman’s shooting
at officers was done “without any understanding of the consequences or think-
ing about the consequences of what he’s gotten himself into.”

       Lord—a former police officer and licensed psychologist with expertise in
suicide by cop—also testified for the defense. She interviewed Freeman and
his former roommate. She also reviewed other interviews with family and
friends and examined records and accounts of the shooting, including the video.
Lord testified during the liability phase that, in her assessment, Freeman had
a number of indicators that made it possible he was suicidal. She also said
that some of Freeman’s actions during the chase and shooting were consistent
with suicide by cop.

       The prosecution cross-examined each expert effectively. Assistant Dis-
trict Attorney Kelly Siegler elicited testimony from Brown that Freeman had
anger issues, that he was not significantly depressed, and that he panicked


       2 See BLACK’S LAW DICTIONARY 1662 (10th ed. 2014) (defining “suicide-by-cop” as “[a]
form of suicide in which the suicidal person intentionally engages in life-threatening behavior
to induce a police officer to shoot the person”). Under Texas law, an element of capital murder
is that the person intentionally or knowingly cause the death of the victim, in this case, a
peace officer. TEX. PENAL CODE §§ 19.02(b)(1), 19.03(a)(2).
                                              3
    Case: 15-70001    Document: 00513072004     Page: 4   Date Filed: 06/09/2015



                                 No. 15-70001
when he fled because he wanted to avoid punishment. Freeman had stated to
Brown, “I didn’t care. They got shot because I was mad about being shot.”
Similarly, she questioned Lord’s assumptions and the inconsistency of her
assessment with regard to Freeman’s statements to Brown.

      In addition to the experts, defense counsel called four members of Free-
man’s family and numerous friends, neighbors, and associates, who testified
about Freeman’s good nature, the recent events that precipitated his depres-
sion, and how inconsistent the shooting was with his character. They sup-
ported the theory that Freeman’s actions were the result of an extreme emo-
tional or psychological break.

      Finally, counsel re-urged, during closing arguments, that Freeman did
not intend to kill anyone, describing his depression and alcohol abuse and tell-
ing the jury that “[Freeman] was reckless. [He] shot in the direction of people.
But the State has presented no evidence, no evidence of his intent.” The prose-
cution argued that Freeman had intended to kill the officers to escape punish-
ment and was not suicidal or mentally impaired. The state maintained that
Freeman had prepared for a shootout, as evidenced by the guns he had with
him. The jury found Freeman guilty of capital murder.

                                       C.
      For the punishment phase, defense counsel focused on showing that
Freeman was a generally good person and that the crime was an unexpected
aberration resulting from depression and difficult circumstances. The defense
called over forty witnesses, including family, friends, former teachers, and for-
mer employers. All said that he was a generally well-behaved person and
student and had no discipline issues. Arresting officers testified that he was
cooperative in custody and had no problems while awaiting trial.


                                       4
    Case: 15-70001    Document: 00513072004    Page: 5   Date Filed: 06/09/2015



                                No. 15-70001
      Milam testified as a neuropsychological expert during the punishment
phase. She interviewed Freeman and his family and administered a battery
of psychological tests. Although the tests showed that Freeman had an aver-
age intelligence score and no brain damage, Milam concluded that Freeman
had a pattern of clinical depression around the time of the crime and had a
history of alcohol abuse. On cross-examination, however, Milam stated that
Freeman had scored high on measures of irresponsibility and manipula-
tiveness.   The prosecution put on strong evidence of aggravating factors,
including that Freeman was about to have his probation revoked for an earlier
driving offense and had anger issues.

      The jury’s answers to the special issues required a death sentence. The
court denied a motion for a new trial, and the CCA affirmed the conviction and
sentence on direct appeal. Freeman, 340 S.W.3d at 734.

                                        D.
      Concurrently with the direct appeal, Freeman’s new postconviction
habeas counsel filed an application with the state trial court, citing, among
other grounds, IAC, urging, in essence, that counsel were deficient because
they failed sufficiently to investigate Freeman’s mental-health background
and should have presented a different defense theory. Freeman summarized
in his state application that
   a more thorough investigation into [Freeman’s] background would have
   revealed a much more believable and persuasive mitigation theme:
   inherited predisposition to mental illness and alcoholism combined
   with chronic exposure to toxic chemicals from infancy into adulthood,
   the presence of at least 3 mental disorders (Alcohol Dependence, a Neu-
   rocognitive Disorder, and either a Major Depressive Disorder or a
   chronic Dysthymic Disorder), combined with contemporaneous
   exposure to a combination of Varsol and a moderate amount of alcohol
   that significantly adversely affected [Freeman's] ability to make
   rational choices during the incident in question.

                                        5
    Case: 15-70001       Document: 00513072004   Page: 6   Date Filed: 06/09/2015



                                  No. 15-70001
      Freeman’s habeas application also maintained that counsel should have
developed evidence that Freeman had blacked out during the crime. In support
of this IAC claim, Freeman submitted three expert affidavits. Dr. Patricia
Perez-Arce stated her opinion that previous head injuries and toxic exposure
at his father’s welding company had impaired Freeman’s mental function and
ability to think rationally.    Dr. Susan Stone declared her belief—without
interviewing Freeman or his family—that the record “raised the possibility”
that Freeman had experienced a dissociative period as part of an undiagnosed
seizure disorder. Finally, Dr. Robert Smith stated that at the time of the
offense Freeman suffered from dysthymic disorder, which is a form of chronic
depression, and alcohol dependence.

      The same court that presided over Freeman’s trial considered his state
habeas application and issued findings of fact and conclusions of law. Consid-
ering the IAC claim under the two-prong standard announced in Strickland v.
Washington, 466 U.S. 668 (1984), the state court determined that, for various
reasons, Freeman had failed to demonstrate that counsel were ineffective.
Among its findings, the court wrote that counsel were experienced criminal
attorneys who presented and developed evidence for their theory that Free-
man’s actions were caused by depression and alcohol dependence, including
hiring experts in clinical psychology and suicide by cop. Moreover, the court
found that the proposed new evidence was substantially similar to the evidence
presented to the jury, and large portions of the expert affidavits were specula-
tive and not credible.

      The court concluded that “Freeman’s trial attorneys’ representation was
reasonable and did not fall below an objective standard of professional compe-
tence, but rather was within the broad range of reasonable professional assis-
tance.” The court declared that neither further investigation by Freeman’s

                                        6
    Case: 15-70001        Document: 00513072004        Page: 7    Date Filed: 06/09/2015



                                      No. 15-70001
attorneys nor the presentation of other evidence would have changed the out-
come. Thus, it recommended denying relief on the IAC claim. The CCA
adopted the trial court’s findings and conclusions and denied habeas relief. 3

      Freeman filed a petition seeking federal habeas relief, bringing IAC as
his only claim. In a thorough opinion assessing the entire record, the district
court denied relief on both prongs of the IAC claim and denied a COA, 4 and
Freeman now seeks a COA from this court.

                                            II.
      Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a petitioner must obtain a COA to appeal the denial of habeas
relief. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 335–36
(2003). Where the district court has denied a COA, we have jurisdiction only
to review whether to issue a COA, as distinguished from deciding the ultimate
merits. Miller-El, 537 U.S. at 336; Ward v. Stephens, 777 F.3d 250, 255 (5th
Cir. 2015).

      In line with 28 U.S.C. § 2253(c), we may issue a COA “only where a peti-
tioner has made a substantial showing of the denial of a constitutional right.”
Miller-El, 537 U.S. at 336 (internal quotation marks omitted). A petitioner
meets that standard if he shows “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 encour-
agement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(internal quotation marks omitted). In judging whether that standard is met,



      3 Ex parte Freeman, No. WR–76,545–01, 2012 WL 6200490 (Tex. Crim. App. 2012)
(unpublished).
      4   Freeman v. Stephens, No. 12-3784, 2014 WL 7345737 (S.D. Tex. Dec. 22, 2014).
                                             7
     Case: 15-70001       Document: 00513072004          Page: 8     Date Filed: 06/09/2015



                                       No. 15-70001
we take an overview and reach a general assessment of the merits. Ward, 777
F.3d at 255.

       “[T]he determination of whether a COA should issue must be made by
viewing the petitioner’s arguments through the lens of the deferential scheme
laid out in 28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th
Cir. 2000). Federal courts may not grant habeas relief from a state court’s
judgment unless the court’s adjudication “resulted in a decision that was con-
trary to, or involved an unreasonable application of, clearly established Fed-
eral law, as determined by the Supreme Court” or “resulted in a decision that
was based on an unreasonable determination of the facts in light of the evi-
dence presented.” 28 U.S.C. § 2254(d)(1), (2); Hearn v. Thaler, 669 F.3d 265,
271 (5th Cir. 2012). So, the ultimate question is not whether the state court’s
decision was incorrect, but rather “whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550
U.S. 465, 473 (2007).

                                             III.
                                              A.
       Freeman claims his lawyers were ineffective because they failed ade-
quately to investigate his case and present other mitigating evidence during
the liability and punishment phases. 5 We judge his claim under the two-prong
standard in Washington, 466 U.S. at 687. To make out a successful claim, he
must show both (1) that counsel's representation fell below an objective



       5 It is not evident from Freeman’s supporting brief whether he is making one IAC
claim or two—that his counsel were independently ineffective both for failing adequately to
investigate and for failing to present other evidence at trial as part of a different strategy.
Regardless, we, like the district court, consider his arguments under one analysis because
the reasoning is interconnected and, whether taken separately or together, Freeman’s IAC
claim does not merit relief. See Trottie v. Stephens, 720 F.3d 231, 242 n.4 (5th Cir. 2013).
                                              8
     Case: 15-70001         Document: 00513072004         Page: 9   Date Filed: 06/09/2015



                                         No. 15-70001
standard of reasonableness and (2) that the deficient performance prejudiced
him such that it is reasonably likely, absent the errors, there would have been
a different result. Harrington v. Richter, 131 S. Ct. 770, 787, 791–92 (2011).
We consider counsel’s performance deferentially, applying “a strong presump-
tion that counsel's representation [was] within the wide range of reasonable
professional assistance.” Id. at 778 (internal quotation marks omitted).

       Meeting both prongs of Washington’s “high bar is never an easy task” 6
and is that much more difficult when considered in conjunction with deference
under § 2254(d). Combined, courts apply “a doubly deferential standard of
review that gives both the state court and the defense attorney the benefit of
the doubt.” 7

       Defense counsel have an obligation to conduct a reasonably substantial
investigation into the facts and potential mitigating evidence. 8 That means
that counsel must either “(1) undertake a reasonable investigation or (2) make
an informed strategic decision that investigation is unnecessary.” 9 In evaluat-
ing the investigation’s adequacy, courts look to factors such as how counsel
prepared for trial, the amount of evidence they had already gathered, and what
leads if any they failed to pursue. 10 Yet attorneys may reasonably balance time
and limited resources against the utility of further investigation, especially if
additional investigation would likely be fruitless or harmful. Wiggins, 539 U.S.



       6   Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010).
       7Ward, 777 F.3d at 259 (internal quotation marks omitted) (quoting Burt v. Tillow,
134 S. Ct. 10, 13 (2013)).
       8Rompilla v. Beard, 545 U.S. 374, 385 (2005); Neal v. Puckett, 239 F.3d 683, 688 (5th
Cir. 2001).
       9Charles v. Stephens, 736 F.3d 380, 389 (5th Cir. 2013); see also Wiggins v. Smith, 539
U.S. 510, 521–22 (2003).
       10   Id. at 527; Neal, 239 F.3d at 687–88.
                                                9
    Case: 15-70001    Document: 00513072004       Page: 10   Date Filed: 06/09/2015



                                  No. 15-70001
at 525. It is the petitioner’s obligation to specify what his lawyers failed to find
and how it would have changed the outcome. Trottie, 720 F.3d at 242–43.

      After an investigation, counsel also must make reasonable strategic deci-
sions about how to present the case, including which witnesses and evidence
to put forth. Id. at 243. If these decisions are made after a thorough investiga-
tion, they “are virtually unchallengeable.” Washington, 466 U.S. at 690. “[A]
tactical decision not to pursue and present potential mitigating evidence on the
grounds that it is double-edged in nature is objectively reasonable, and there-
fore does not amount to deficient performance.” Rector v. Johnson, 120 F.3d
551, 564 (5th Cir. 1997).

                                        B.
      Freeman avers that his lawyers should have conducted a deeper investi-
gation into the mental-health history of his family, which he claims bolsters
his notion that he suffers from depression and possibly other disorders. He
further claims that they should have investigated the possibility that his brain
was impaired as a result of toxic exposure while working for his father’s weld-
ing company.

      Though counsel did not submit affidavits in state court recounting their
efforts at trial, the record shows that they pursued multiple discovery motions,
reviewed evidence and conducted independent interviews, and hired multiple
experts—including a mitigation investigator—who in turn did their own
research and interviews.      The psychological experts who interviewed and
tested Freeman concluded that he may have been depressed or suicidal, but
they also found that he had no brain dysfunction and did not suffer from any
serious psychological impairment or personality disorder. His psychological
tests were all within normal ranges.


                                        10
    Case: 15-70001       Document: 00513072004          Page: 11     Date Filed: 06/09/2015



                                       No. 15-70001
       Freeman’s position thus “essentially come[s] down to a matter of
degrees,” reasoning that his attorneys did not investigate enough. See Ward,
777 F.3d at 265. It is almost always true that there was more that counsel
could have done in preparation: interviewed more people, requested and
reviewed more records, or hired more experts. But that is not the test. Instead,
the question is whether, in light of the circumstances, it was an unreasonable
professional judgment for the attorneys to stop the investigation where they
did. See Wiggins, 539 U.S. at 533. Given the expert reports, we cannot con-
clude that Freeman’s attorneys unreasonably failed to pursue a more detailed
investigation into possible toxic exposure or mental illness because the circum-
stances and available information indicated that it would have been unproduc-
tive or possibly even harmful. 11

       Nor can we say that Freeman’s attorneys’ choice of trial strategy was
ineffective. This was not defense counsel’s first rodeo. Both were seasoned
criminal defense attorneys, and Schneider had previous experience trying capi-
tal cases. Still, they faced a particularly strong case from the prosecution.
Their strategy focused on Freeman’s lack of intent and on his good character
and lack of future dangerousness. They presented evidence that Freeman had
been depressed and dependent on alcohol. Experts testified that Freeman may
have been suicidal and did not understand the consequences of his actions.
Counsel also presented numerous lay witnesses.

       Lawyers have a wide range of possible strategies, and “[e]ven the best
criminal defense attorneys would not defend a particular client in the same
way.” Richter, 131 S. Ct. at 788–89 (quoting Washington, 466 F.3d at 689).



       11 Because evidence of brain injury or organic brain damage is double-edged, a tactical
decision not to pursue such evidence as potentially mitigating is objectively reasonable. Rec-
tor, 120 F.3d at 564; Johnson v. Cockrell, 306 F.3d 249, 253 (5th Cir. 2002).
                                             11
    Case: 15-70001          Document: 00513072004       Page: 12    Date Filed: 06/09/2015



                                         No. 15-70001
Because evidence of mental disorder or brain damage is in tension with evi-
dence that Freeman was not a future danger, counsel had to make a tactical
choice about which theme to present. The fact that a particular strategy failed
does not mean it was unreasonable, and Freeman’s attorneys’ strategy did not
fall outside the wide latitude they have in deciding how best to represent their
client. Ward, 777 F.3d at 264. As a result, Freeman has not satisfied Washing-
ton’s first prong.

         Moreover, even if the investigation and trial strategy were ineffective,
the state court justifiably concluded that Freeman was not prejudiced. Had
counsel gathered and presented the evidence that Freeman brought forward in
his habeas petition, it is unlikely that his conviction or sentence would have
been different when weighed against the state’s strong evidence. See Porter v.
McCollum, 130 S. Ct. 447, 453–54 (2009). The state court found that the prof-
fered evidence in Freeman’s habeas application was largely duplicative of what
was presented at trial. Defense counsel put on evidence of Freeman’s alcohol
dependence and depression, and it is unlikely that a more expansive family
health history or a diagnosis of dysthymic disorder would have changed how
the jury considered it. See Emery v. Johnson, 139 F.3d 191, 197 (5th Cir. 1997).

         Relatedly, any evidence that Freeman suffered from blackouts or brain
dysfunction as a result of toxic exposure is classically double-edged and may
have harmed his case rather than helped. Although it may have reduced his
culpability in the eyes of the jury, it may also have increased the jury’s assess-
ment of future dangerousness. As a result, failure to present that evidence
likely did not affect the outcome. 12 Consequently, Freeman has also failed to
satisfy the second prong of his IAC claim.


         12   See Johnson, 306 F.3d at 253; Dowthitt v. Johnson, 230 F.3d 733, 745 (5th Cir.
2000).
                                               12
   Case: 15-70001   Document: 00513072004      Page: 13   Date Filed: 06/09/2015



                                No. 15-70001
     In summary, jurists of reasons could not debate the district court’s deci-
sion on Freeman’s IAC claim under AEDPA. Given the doubly deferential
standard, Freeman has failed to demonstrate that he should have succeeded
on his Washington claim or that it warrants further encouragement. The
motion for a COA is DENIED.




                                     13
