                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS         August 19, 2003
                      FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                Clerk


                             No. 00-41272



CHARLES DEAN HOOD,

                                              Petitioner-Appellant,

versus


JANIE COCKRELL, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

                                              Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                           (4:99-CV-109)
                       --------------------

Before SMITH, WIENER, and STEWART, Circuit Judges.

PER CURIAM:

     IT IS ORDERED that Petitioner’s motion to expand the district

court’s grant of a Certificate of Appealability (“COA”) to cover a

claim of constructive ineffective assistance of counsel is DENIED

for the following reasons.

     In his motion, Hood implicates nine issues:

     1.    Whether  the    district  court   misapplied   the
     Brecht v. Abrahamson, 507 U.S. 619 (1993) harmless error
     standard

     2. Whether the district court erroneously evaluated the Ake
     v. Oklahoma, 470 U.S. 68 (1985) errors under the harmless
     error standard

     3. Whether the trial court’s Ake violation in refusing to
     appoint Hood an independent psychiatrist prior to trial and at
     trial was harmless error
     4. Whether trial counsel’s failure to adequately preserve and
     pursue Hood’s rights under Ake was harmless

     5. Whether the trial court’s Ake violation in not directing
     Dr. Brooks to assist the defense in preparing for trial was
     harmless

     6. Whether the Ake violation by Dr. Brooks in refusing to
     state his opinion in his report regarding Hood’s future
     dangerousness was harmless

     7. Whether the Ake violation by Dr. Brooks in refusing to
     tell the defense his opinion on Hood’s future dangerousness
     except from the witness stand was harmless

     8.   Whether the Ake violation by Dr. Brooks in failing to
     delve into mitigation issues and to provide assistance to
     prepare a mitigation defense was harmless

     9. Whether the trial court, by forcing Hood to elect between
     his constitutional rights, created a constructive ineffective
     assistance of counsel requiring automatic reversal1

                                I

     Texas prisoner # 000982, Hood was convicted of the 1989

capital murders of Ronald Williamson and Tracie Lynn Wallace under

Texas Penal Code section 19.03(a)(2) and was sentenced to death.

Hood v. State, No. 71, 167 (Tex. Crim. App. Nov. 24, 1993)

(unpublished). His conviction and sentence were affirmed on direct

appeal.

     Prior to his trial, Hood moved for the appointment of an

independent psychiatrist to assist him in preparing a defense at

sentencing, noting that a particular need existed because, in all

likelihood, his present and future mental condition would be an

issue at trial and, further, that the State would have access to


     1
        Hood does not brief issues 3-8, stating that they are
premised on the contention set forth in Issue 2, that the Ake
errors were structural, requiring automatic reversal.

                                2
its own expert.2     At the first hearing on the matter, the trial

court ordered defense counsel to submit a list of psychiatrists

from which the court would appoint one.           The trial court reserved

decision on whether the prosecution would be able to receive a copy

of the psychiatric report.

     The prosecution moved for a rehearing.           At a hearing on that

matter held early in June of 1990, the State requested that either

a neutral psychiatrist be appointed and that the report be made

available to both parties or that the prosecution’s psychiatrist,

if it chose to obtain one, have access to Hood.                  The defense

objected, arguing that if Hood’s psychiatric report were required

to be shared with the State, he would be forced to choose between

his right to appointment of a psychiatrist and his right against

self-incrimination, because sharing the report with the prosecution

would be tantamount to communicating with the State.               The trial

court reserved ruling on that issue.

     Immediately after the hearing, however, the trial judge met

with counsel   for   both   parties       in   chambers.   The   in-chambers

conference was not recorded; however, the docket sheet indicates

that the trial court granted the defense’s motion as follows:           “(1)

Psychiatrist appointed ——    information shared by both or (2) [two]

     2
        At the time of Hood’s offense, Texas law provided that
to impose the death penalty, the jury had to make an affirmative
finding that, inter alia, “there [was] a probability that the
defendant would commit criminal acts of violence that would
constitute a continuing threat to society.” TEX. CRIM. PROC. CODE
ANN. § 37.071(b)(2) (Vernon 1981 & Supp. 2003) (Historical and
Statutory Notes).     The jury was further instructed that in
answering the special issues, it should consider any evidence that
mitigated against imposition of the death penalty.

                                      3
psychiatrists [appointed], one of each side’s choice; interview

together ——     share information.”         The docket sheet then listed

three psychiatrists, one of whom was “Dr. Brooks.”

       Later that month, the trial judge signed an order granting

Hood’s motion in part and giving him the option of choosing between

two alternatives. The first alternative ordered the appointment of

Dr. Sidney Brooks to conduct a psychiatric examination to determine

Hood’s future dangerousness and assist the jury in determining the

proper sentence. Under this alternative, Dr. Brooks was ordered to

prepare and file a written report of his findings with the court,

which report would be made available to both parties.

       The second alternative ordered that each party designate in

writing one psychiatrist of its choosing before July 13, 1990, for

purposes   of   conducting   a   joint      interview     with   Hood.   Each

psychiatrist would report only to the party that had designated

him.

       This basic order specified that Hood was to file a written

election of one of the two alternatives no later than July 13,

1990, and that if he failed to do so, his motion to appoint an

independent psychiatrist would be denied. The order was signed for

approval by counsel for Hood and for the State.

       Although no written election was ever made, Dr. Brooks did

conduct an examination of Hood on July 6, 1990, and submitted his

report to the trial court.        Dr. Brooks diagnosed Hood as having

antisocial personality disorder and concluded in relevant part that

Hood   “ha[d]   demonstrated     in   the    past   and    [was]   likely   to


                                      4
demonstrate       in    the     future,    particularly      when      subjected    to

provocative circumstances, a propensity to act out his aggressive

instincts       upon    other    persons       and/or    property.”      Dr.   Brooks

additionally      diagnosed       Hood    with    “[n]europhysiological         brain

dysfunction with probable left temporal cortical and deep temporal

limbic brain dysfunction” and offered the opinion that “brain

dysfunctional factors [were] inevitably important and contributory

to Mr. Hood’s personality dysfunction” and “contribute[d] to the

risk     of   behavioral        dysfunction      and     future     dangerousness.”

Dr.    Brooks     suggested      that     additional      testing      would   assist

in further evaluating and confirming those clinical findings.

       Dr. Brooks was not called to testify at trial, however.

According to the affidavit testimony introduced at Hood’s state

habeas proceeding by his trial co-counsel David Haynes, the defense

had access to Dr. Brooks’s report, but it did not contain the

doctor’s opinion on Hood’s future dangerousness.                         During the

penalty phase, counsel interviewed Dr. Brooks in a courthouse

witness room in an effort to obtain his position on the issue of

future dangerousness, but Dr. Brooks refused to state his opinion,

except from the witness stand.                 According to Haynes’ affidavit,

defense counsel elected not to call Dr. Brooks because if he had

testified that Hood was a future danger, it would have been

disastrous to the defense. According to the affidavit testimony of

Hood’s trial co-counsel George Parker, the decision not to call Dr.

Brooks    was    made    “[b]ecause       of   [his]    refusal   to    provide    any

information not contained in his report.”


                                           5
     During the penalty phase, the prosecution called two expert

witnesses, both of whom testified that Hood was a sociopath who

would more likely than not be a continuing threat to society.

Immediately before to the close of evidence at the penalty phase,

defense counsel re-urged their pre-trial motion and requested

funding for an independent psychiatrist.            Counsel for Hood argued

that the State had the economic ability to hire two experts and

that Hood had been denied such an opportunity, but the trial judge

denied the motion.         Based on the jury’s answers to the special

issues, the death penalty was assessed.

     Hood filed a state application for post-conviction relief

raising, inter alia,3 the following grounds for relief:                (1) The

trial court’s refusal to appoint an independent, confidential

psychiatrist prior to and at trial violated his Fifth, Sixth,

Eighth,   and    Fourteenth      Amendment   rights   and    Hood    had   never

waived his right to such an expert; (2) counsel was ineffective for

failing to      preserve   and    pursue   Hood’s   rights   under    Ake;   and

(3) counsel was ineffective for failing to investigate and present

mitigation evidence.       The Texas Court of Criminal Appeals (“TCCA”)

denied the application with written order based on the following

pertinent factual findings and legal conclusions of the trial

court:

     1. Hood failed to choose in writing which psychiatric
     examination alternative he preferred.



     3
        Only those claims that he chose to raise in his § 2254
petition are listed.

                                       6
     2. Hood agreed to cooperate with Dr. Brooks, even though
     counsel had advised him against it.

     3. Hood impliedly elected the first option contained in
     the trial court’s motion, both by his failure to make a
     written election and by cooperating with Dr. Brooks
     against the advice of counsel.

     4. Before Hood was examined by Dr. Brooks, his legal
     rights were explained to him and he appeared to
     understand them.

     5. Hood waived appellate complaint about not having his
     own psychiatrist by failing to exercise the option
     offered by the trial judge of being examined by a
     psychiatrist of his own choosing.

     6.   The options set forth in the trial court’s order
     satisfied Ake.

     7. During the course of trial counsel’s representation,
     Hood   stopped  communicating   with   them,   insisting
     on communicating only through counsel’s legal assistant,
     Janet Heitmiller.

     8. The unsuitability of this arrangement was made clear
     to Hood, but to no avail.

     9. Counsel met with Hood’s parents to obtain mitigating
     evidence; however, counsel’s efforts were hampered by a
     lack of cooperation from Hood and members of his family.

     10.   Hood received effective assistance of counsel.

     11. Hood failed to demonstrate a reasonable probability
     that his sentence would have been different but for
     counsel’s alleged deficiencies.

     Hood subsequently filed the instant § 2254 petition, raising

the following issues:   (1) whether his trial court’s refusal to

appoint an independent, confidential psychiatrist to examine Hood

prior to and at trial violated his Fifth, Sixth, Eighth, and

Fourteenth Amendment rights; (2) whether Hood waived his right to

an independent psychiatric expert; (3) whether Hood was denied

his Sixth and Fourteenth Amendment rights to effective assistance


                                 7
of counsel at the punishment phase by counsel’s failure to preserve

and   pursue   Hood’s   rights      under   Ake,   by   not   effectively

communicating with Hood, by failing to request further medical

testing so as to present a mitigation defense, and by allowing Hood

to give a psychiatric interview to Dr. Brooks; (4) whether the

trial court created constructive ineffective assistance of counsel

by forcing Hood to abandon his rights under Ake so as to avoid

self-incrimination;     and   (5)    whether   trial    counsel   rendered

ineffective assistance during the punishment phase of trial under

the Sixth and Fourteenth Amendments by failing to develop and

present a mitigation defense and by delegating that responsibility

to a legal assistant.     The State moved for summary judgment, and

the district court issued a memorandum opinion denying habeas

relief for the following reasons.

      Ake Claims

           Future Dangerousness

      The district court determined that the TCCA’s finding on

direct appeal that Hood had waived his Ake claims by submitting to

an evaluation against the advice of counsel was untenable.4           The

district court found that both the affidavit evidence and Dr.

Brooks’s report supported a finding that counsel misunderstood the

court’s order as requiring Hood to be examined by Dr. Brooks.          In

support of this finding, the district court pointed to the fact

      4
        On direct appeal, the Texas Court of Criminal Appeals held
that the fact that Hood did not exercise the option afforded him by
the trial court of having a psychiatrist of his own choosing that
would report solely to him meant that he had waived his appellate
complaint that he was denied an independent psychiatrist.

                                     8
that the trial court coordinator had sent a copy of the order to

Hood’s trial counsel and to Dr. Brooks, along with a copy of a

letter to Brooks which stated, “Enclosed is a copy of the Court’s

Order Appointing Psychiatrist to Examine Defendant.                          Your contact

at     the     sheriff’s       office    will     be     Jim       Hamilton,      Medical

Officer. . . .”         Based on this letter, the district court ventured

that it appeared that the court coordinator mistakenly concluded

that Dr. Brooks had in fact been appointed by the trial court to

examine Hood and, as a result of receiving copies of her letter

with the court’s order, both Hood’s counsel and Dr. Brooks had the

same misunderstanding.             The district court found this mistake

understandable, observing that the order was “somewhat ambiguous.”

       Based     on    the    affidavit    testimony          of     Janet    Heitmiller5

and information in Dr. Brooks’s report, the district court found

that Hood’s counsel believed that he had no right to prevent Hood’s

interview       with    Dr.    Brooks,    and    that    if    Hood’s        counsel   had

understood the order, Brooks would not have gone to the jail to

interview Hood at all, absent an agreement in writing by Hood’s

counsel to the first alternative. The district court further found

that       neither    the    affidavit   evidence       nor    Dr.    Brooks’s    report

established that Hood was ever informed of his right to refuse to

be interviewed.

       In     sum,    the    district    court   found        that    Hood’s    counsel,

the court coordinator, and Dr. Brooks all mistakenly believed that

       5
        The district court noted Heitmiller’s attestation that
counsel instructed her to tell Hood not to answer any questions
posed by Dr. Brooks about the crime.

                                           9
Dr. Brooks had been appointed to examine Hood and that Hood had to

submit; and, further, that this mistake was caused in part by the

trial court coordinator’s letter to Dr. Brooks and in part by the

ambiguity of the order.     The district court further found that

there was no evidence to support the determination that counsel had

waived the Ake claim by failing to elect in writing to pursue the

order’s   second   alternative,   because   the   terms   of   the   order

contradicted this reasoning. Counsel never made a written election

and, therefore, under the terms of the order, Dr. Brooks should not

have examined Hood.6

     Having determined that the state court’s determination was

unreasonable in light of the record, the district court addressed

the merits of Hood’s Ake claim.     The court assumed arguendo that

the alternatives set forth in the trial court’s order violated Ake,


     6
         Although not relevant to the resolution of the instant
motion to expand the COA grant, we nevertheless note that in
interviews with Hood’s habeas counsel, trial counsel stated that
they saw both alternatives offered in the trial court’s order as
constitutionally impermissible and because they did not want to
waive Hood’s Fifth Amendment rights, they made a purposeful
decision to make no election between the options offered by the
trial court.    Moreover, defense co-counsel Parker’s affidavit
states, “The options provided by the Court, after being analyzed by
Mr. Haynes and myself, were found to be options that in my opinion
at the time only made Mr. Hood’s situation worse if he were to
exercise either option.” These statements cast serious doubt on
the district court’s factual finding that counsel misread or
misunderstood the order by reading only its first paragraph and,
therefore, erroneously believed that Hood had to submit to an
examination by Brooks.     It is further noteworthy that habeas
counsel did not argue that trial counsel (or Dr. Brooks or the
court coordinator) misunderstood the order; counsel instead argued
that Ms. Heitmiller erroneously informed Hood that he had to submit
to the interview because the trial court had so ordered and that,
for purposes of ineffective assistance, her actions were imputable
to trial counsel.

                                  10
and found that Dr. Brooks’s actions violated Ake, insofar as he (1)

disobeyed the court’s order to state in his report his opinion

whether there was a probability that Hood would commit future

criminal acts, and (2) refused to reveal his opinion on Hood’s

future dangerousness except from the witness stand.7

     The district court then assessed whether these errors were (1)

structural, requiring automatic reversal, or (2) trial errors,

requiring reversal only if there was a showing of harm.     Citing

White v. Johnson, 153 F.3d 197 (5th Cir. 1998), the district court

held that the errors were trial errors and should therefore be

analyzed under the harmless error standard.      Using White as a

guide, the district court determined that the following non-

psychiatric evidence of Hood’s future dangerousness was so strong

that his future dangerousness would have been a foregone conclusion

in the jury’s mind:     (1) Hood had a juvenile conviction for

breaking and entering and was jailed for violating probation; (2)

while in jail, Hood attempted to draw attention to himself on three

occasions by deliberately injuring himself or feigning injury; (3)

at age 19, Hood entered into a sexual relationship with a   15-year

old girl; (4) Hood’s father had grabbed him from behind while Hood

was arguing with his girlfriend’s mother,, and Hood struck his

father and threatened to kill him; (5) Hood would force his 15-year

old girlfriend to have sex with him when she would refuse; (6) Hood

     7
        The district court additionally found that Dr. Brooks had
violated Ake by not delving into mitigation issues and by not
providing assistance to prepare a mitigation defense; however, the
court noted that Hood’s Ake claim did not encompass the mitigation
issue, and therefore refused to address it.

                                11
took his girlfriend to Texas from Indiana and told her mother that

he would kill her if she refused to allow him to see her daughter;

(7) after working at Taco Bell for only three days Hood was fired

for   fighting;    (8)    shortly   before   the    murders,   Hood    raped   a

different 15-year old girl who was visiting him and threatened to

kill her if she told anyone; and (9) Hood was “written up” for

fighting with another inmate while in prison awaiting trial on the

murder charge.      Based on the strength of this non-psychiatric

evidence, the district court determined that any error in not

allowing Hood to have the benefit of an independent, confidential

psychiatric expert on the issue of future dangerousness, or any

lack of help by Dr. Brooks in preparing a defense on this issue,

was harmless.

      The district court next addressed Hood’s claim that trial

counsel provided ineffective assistance at the punishment phase.

The   district    court    rejected   Hood’s       constructive     ineffective

assistance argument, in which he contended that the trial court’s

order rendered counsel’s representation ineffective.              The district

court held that its conclusion that any Ake error was harmless

precluded   a     determination     that     a   deficiency    in     counsel’s

performance precipitated by the court’s order was prejudicial under

Strickland v. Washington, 466 U.S. 668 (1984).            The district court

also rejected Hood’s contention that counsel should have done more

to preserve the right to an independent, confidential psychiatric

expert.   The district court found that as counsel had twice moved




                                      12
unsuccessfully for appointment of such an expert, their performance

was not deficient.

      The district court nevertheless found that trial counsel’s

misreading of the trial court’s order, and the incorrect advice

given     Hood    based    on     the    misreading,        constituted     deficient

performance.       The court added, however, that even if counsel had

correctly read the order and advised Hood not to submit to Dr.

Brooks’s evaluation, the only remaining options for counsel were

either to have Hood submit to a joint interview by psychiatrists

for the state and defense, or to forgo any expert psychiatric

assistance entirely.            Thus, the district court held that because

Hood failed to demonstrate that there was a probability that his

sentencing would have been different but for counsel’s failure to

pursue    the     remaining       alternatives,        he   failed   to    establish

Strickland prejudice.

      Regarding mitigation evidence, the district court rejected the

contention that counsel’s failure to communicate directly with Hood

resulted in a failure to recognize the need to obtain additional

medical     testing       and    an     additional     expert    and,     therefore,

constituted ineffective assistance.              The district court found that

the   opinion      Hood    claimed      might   have    been    obtained     from   an

additional       expert   ——    that    his   mental    impairments       contributed

to his behavior —— was already contained in Dr. Brooks’s report.

The district court identified the “real problem” as the trial

court’s failure to order Dr. Brooks, and Brooks’s own refusal, to

assist defense counsel in preparing and presenting their case in


                                           13
mitigation.    The court reasoned that, because counsel should not

have had to pursue an additional expert, the failure to do so did

not constitute deficient performance.

      The   district    court    determined,     however,      that   counsel’s

decision to use his legal assistant, Ms. Heitmiller, to investigate

Hood’s background concerning issues of mitigation was deficient

performance.     This was because Ms. Heitmiller was not qualified to

conduct such an investigation, and counsel had readily available

the   services     of   a   trained,      court-appointed        investigator.

The district court noted the following new mitigation evidence that

was gathered post-trial:        (1) Hood’s family moved often because of

financial and legal trouble; his father served jail time for theft,

made no     financial   contribution      to   the   family,   and    was   under

investigation for incest; (2) Hood’s mother was raised in an

abusive home and consequently was unemotional to her children and

denied or tolerated her husband’s abuse of Hood and his siblings;

(3) Hood’s father verbally and physically abused him; (4) Hood’s

parents sent him conflicting signals on moral issues; (5) Hood

suffered brain damage at age three after being hit by a truck,

impairing his intellectual and emotional development; (6) Hood was

ridiculed by classmates because of his intellectual impairment; and

(7) Hood manifested emotional and behavioral problems at a young

age, and they appeared to worsen over time.             Although it labeled

this “a close question,” the district court nevertheless determined

that there was not a reasonable probability that a juror would have

voted against the death penalty in Hood’s case and, therefore, that


                                     14
he had not shown Strickland prejudice.                  The district court based

this    determination on a comparison of Hood’s facts with those of

the petitioner in Williams v. Taylor, 529 U.S. 362 (2000), finding

that   the    cases    were    similar     but       concluding      that    Williams’s

demonstration of remorse after his crimes “rendered him more worthy

of mercy” than Hood.            The court thus found that there was no

likelihood     that    Hood’s    jury     would       have    been      swayed    by   the

mitigation evidence.

       Hood’s final ineffective assistance claim —— that counsel was

ineffective    for    not     presenting       the    above-mentioned        mitigating

evidence to Dr. Brooks —— was also rejected by the district court.

It determined that even if counsel had                  performed competently by

showing Dr. Brooks the mitigating evidence, there was still no

reasonable     probability      that     the    result       of   the    penalty-phase

proceedings would have been different.                   The court so concluded

because the trial judge’s order did not direct Dr. Brooks to

provide such assistance, and Dr. Brooks acted in conformity with

what he believed the order required, i.e. an impartial psychiatric

evaluation.

       Finally, the district court rejected Hood’s contention that

the cumulative effect of his trial errors rendered his trial

fundamentally     unfair.         The     district       court       found   that      the

combination of the trial court’s Ake error in not ordering Dr.

Brooks   to   assist    the     defense    on    the    issue     of     Hood’s   future

dangerousness, and of counsel’s failure to present more extensive

evidence in mitigation, did not have a substantial or injurious


                                          15
effect on the jury’s verdict.                   The district court based this

determination on “the very strong non-psychiatric evidence of

future dangerousness, the double-edged nature of the mitigating

evidence,8 and Hood’s lack of either remorse or rehabilitation.”

     The district court granted the State’s motion for summary

judgment and denied Hood’s petition for habeas relief.                  Hood filed

a timely notice of appeal and moved to amend the judgment and,

alternatively, for a new trial.              He also moved for a COA.

     The district court granted Hood a COA on the following issues:

(1) Whether Hood’s counsel’s misreading of the trial court’s order

regarding   the    psychiatrist        examination,     and    delegating    to    an

untrained    legal      assistant      the      investigation    into     potential

mitigating evidence, created a reasonable probability that the

result of his punishment hearing would have been different had

counsel’s    performance        been    adequate,      and     (2)   whether      the

combination of the violations of Hood’s rights under Ake and his

counsel’s deficient performance had a substantial and injurious

effect on the jury’s decision, thereby depriving him of a fair

trial.    COA was denied on all other claims, and the district court

denied Hood’s post-judgment motion.

                                           II

     We    may    not   grant    a   COA     unless   the     applicant    makes    a

substantial showing of the denial of a constitutional right.


     8
       The district court recognized that the mitigating evidence
of Hood’s mental impairment would be a “double-edged sword,”
because, despite reducing his moral culpability, it also would have
increased the probability of his future dangerousness.

                                           16
See 28 U.S.C. § 2253(c)(2). “The COA determination under § 2253(c)

requires an overview of the claims in the habeas petition and a

general assessment of their merits.” Miller-El v. Cockrell, 123 S.

Ct. 1029, 1039 (2003). We look to the district court’s application

of the Antiterrorism and Effective Death Penalty Act (AEDPA) to the

petitioner’s constitutional claims and asks whether the district

court’s resolution of those claims was debatable among jurists of

reason.



ISSUE 1:    Whether the district court misapplied the Brecht harmless
            error standard


     Hood   argues     that   in    reviewing     the    harmlessness    of   the

trial errors, the district court used the wrong standard when

it assessed whether there was a “‘reasonable probability’” that the

result of the punishment phase would have been different but for

the errors.   Relying on Brecht and Woods v. Johnson, 75 F.3d 1017,

1027 (5th Cir. 1996), Hood contends that the district court was

required to ask instead whether there was “‘more than a mere

possibility’” that the error contributed to the verdict.                 Noting

that the    district    court      found   the   issue   whether   the   penalty

proceedings would have been different a “‘close question,’” Hood

argues that he is entitled to relief under the “more than a mere

possibility” standard.        He further contends that under the “more

than a mere possibility” standard, the cumulative impact of the

trial errors requires a finding of harm.




                                       17
     Brecht held that constitutional errors that do not require

automatic reversal would be assessed on collateral review under the

harmless error standard set forth in Kotteakos v. United States, 328

U.S. 750 (1946).     507 U.S. at 623.       Under that standard, the error

must have “had substantial and injurious effect or influence in

determining the jury’s verdict” for the petitioner to obtain habeas

relief.   Id.    In Woods, we reasoned that, under Brecht, a defendant

is not entitled to relief “unless there is more than a mere

reasonable      possibility   that   [the   constitutional   trial   error]

contributed to the verdict.” 75 F.3d at 1026. We noted further that

the Brecht standard does not require the petitioner to prove by the

more demanding “reasonable probability” standard that, absent the

error, the result of the proceeding would have been different.         Id.

at 1027 (citing Kyles v. Whitley, 514 U.S. 419, 436 (1995); see also

Barrientes v. Johnson, 221 F.3d 741, 756 (5th Cir. 2000) (noting

that the “reasonable probability” standard is more demanding than

the Brecht harmless error standard).

     Hood asserts that the district court erroneously held him

to the more demanding “reasonable probability” standard when it (1)

evaluated the harmlessness of the Ake errors, (2) evaluated the

prejudice prong of his ineffective assistance of counsel claims,

and (3) evaluated the effect of the cumulative error.          The record,

however, does not support Hood’s assertion that the district court

applied the “reasonable probability” standard when evaluating the

Ake claims.      Based on its summary of the non-psychiatric evidence

of Hood’s future dangerousness, the district court held that Hood’s


                                      18
future dangerousness would have been a foregone conclusion in the

mind of the jury, so that any Ake error was harmless.                 Further, the

district court correctly identified the Brecht standard, and no

where in this portion of its opinion does the court use the words

“reasonable probability.”

       Additionally, the Brecht standard was inapplicable to Hood’s

ineffective assistance claims.              Instead, the district court was

required to evaluate whether “there [was] 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

(emphasis added).          The court thus applied the appropriate standard

when determining whether counsel’s errors were prejudicial.                     The

district     court    concluded      that     there   was   not   a    “reasonable

probability” that the result of Hood’s penalty proceeding would

have been different.         See also Barrientes, 221 F.3d at 756 (noting

that “Strickland claims utilize the more demanding ‘reasonable

probability’ standard”).

       Finally,      the    district   court     reviewed    Hood’s     claim    of

cumulative error under the Brecht standard and determined that

counsel’s failure to introduce the psychiatric and the mitigating

evidence would not have substantially or injuriously influenced the

verdict.     There is no support in the record for Hood’s contention

that   the   district       court   applied    the    “reasonable     probability”

standard to this claim.




                                        19
     Based on the foregoing arguments, Hood has not demonstrated

that the district court’s resolution of these constitutional claims

was debatable.



ISSUE 2:   Whether the district court erroneously evaluated the Ake
           errors under the harmless error standard


     Hood insists that the district court erroneously classified

the Ake errors as “trial” errors (which are properly evaluated

under the harmless error standard), when the errors were in fact

“structural” and, therefore, required automatic reversal.   Relying

on our decision in White, Hood contends that a defendant who makes

a showing that his mental condition could have been a significant

mitigating factor and then suffers an Ake error has suffered a

structural error.   He further notes that the TCCA has held that Ake

error is not subject to a harmless error analysis and, further,

that in Ake, the Supreme Court reversed and remanded without

conducting a harmless error analysis.

     Whether a constitutional error is reviewed for harmless error

depends on whether the error is characterized as “trial error”

or “structural error.”    White, 153 F.3d at 201.     “Trial error”

occurs during the presentation of the case and is subject to a

harmless error analysis because “it ‘may . . . be quantitatively

assessed in the context of other evidence presented in order

to determine [the effect it had on the trial].’” Id. (quoting

Brecht, 507 U.S. at 629). “Structural error,” however, “‘affect[s]

the framework within which the trial proceeds, rather than simply


                                 20
an error in the trial process itself’” and is therefore not subject

to the harmless error analysis.              Id. at 201-02 (quoting Arizona v.

Fulminante, 499 U.S. 279, 310 (1991)).

       In Ake, the Supreme Court held in relevant part that when the

state presents psychiatric evidence on the issue of a capital

defendant’s future dangerousness for purposes of establishing an

aggravating factor to be considered at sentencing, due process

requires that the defendant be afforded access to a psychiatric

examination on relevant issues, to psychiatric testimony, and

to assistance in preparation at the penalty phase.                    470 U.S. at 83-

84.    After determining that Ake suffered due process violations

when he was denied the assistance of a psychiatrist, the Court

reversed and remanded for a new trial.                Id. at 86-87.

       The Court has never held definitively, however, that Ake error

is structural.         See Briseno v. Cockrell, 274 F.3d 204, 210-11 (5th

Cir. 2001) (recognizing same).               Indeed, in Tuggle v. Netherland,

516 U.S. 10, 14 (1995), the Court remanded for a determination

“whether, or by what procedures, the sentence might be sustained or

reimposed” in light of an Ake error, specifically noting that

neither the state court nor the Court of Appeals had addressed the

applicability of the harmless error analysis.

       A   federal      habeas    petitioner       must     establish    that      he   is

entitled     to       relief   under   “clearly      established        Federal     law,

as    determined       by   the   Supreme    Court     of    the     United   States.”

28    U.S.C.      §    2254(d)(1);     see       Williams,     529    U.S.    at    381.

Consequently, the absence of Supreme Court authority on this issue,


                                            21
in addition to the fact that the district court’s use of the

harmless error analysis was not inconsistent with other Supreme

Court precedent, precludes a finding that the district court’s

resolution of the constitutional claim was debatable.   Cf. Ledford

v. Thomas, 275 F.3d 471, 474 (5th Cir. 2001) (absence of Supreme

Court precedent on point precluded finding that state court’s

adjudication involved an unreasonable application of federal law),

cert. denied, 536 U.S. 927 (2002).

     Furthermore, because relief must be established under federal

law, Hood’s contention based on Rey v. State, 897 S.W.2d 333, 346

(Tex. Crim. App. 1995) (holding that Ake error cannot be evaluated

for harm), that the TCCA has held Ake error to be structural, is

irrelevant.   Citing the absence of an explicit statement from the

Supreme Court on this issue, we have   concluded that Rey’s holding

has been overruled by Cain v. State, 947 S.W.2d 262, 264 (Tex.

Crim. App. 1997),9 which held that “[e]xcept for certain federal

constitutional errors labeled by the United States Supreme Court as

‘structural,’ no error . . . is categorically immune to a harmless

error analysis.”   Briseno, 274 F.3d at 210-11 (internal quotations

omitted) (quoting Cain, 947 S.W.2d at 264) (emphasis added).

     Finally, we have squarely addressed this issue and have held

that Ake errors are subject to harmless error review.   White, 153

F.3d at 201 (“Three other circuits have expressly concluded that

Ake error is subject to harmless-error analysis, and we now join


     9
       Cain was superseded by statute on other grounds by Aguirre-
Mata v. State, 992 S.W.2d 495, 497-98 (Tex. Crim. App. 1999).

                                 22
them.”). Hood urges that White limited the application of harmless

error review to cases in which a defendant failed to make a showing

that his mental condition could have been a significant mitigating

factor, leaving unanswered the question whether a defendant who

makes a proper showing and then suffers an Ake violation has

suffered a “trial” or “structural” error.            Hood reads White too

narrowly; but even assuming arguendo that White did not foreclose

a determination that Ake error is structural when a defendant has

established to the state trial court that his mental condition

could have been a significant mitigating factor, Hood failed to

make such a showing.     Like White, Hood argued that he was entitled

to   the   appointment   of   a   psychiatrist    only   because   the   State

intended to present its own psychiatric testimony; he made no

showing that he was entitled to a psychiatrist on any other basis.

White, 153 F.3d at 204.       White held such a showing insufficient to

establish that any purported Ake error was structural.             See White,

153 F.3d at 203-04 (holding that showing of an entitlement to

psychiatric assistance on the sole basis that the State intended to

present    expert   testimony     was   subject   only   to   harmless   error

review.).

      In light of the foregoing, Hood has not demonstrated an

entitlement to a COA on this issue.




                                        23
ISSUES 3-8:           Whether   the    specified             Ake      errors require
                      automatic reversal


       Hood does not brief issues three through eight; he instead

states that each is premised on his contention that the district

court erroneously evaluated the Ake error under the harmless error

standard.       As just noted, however, Hood has not demonstrated that

the propriety of the district court’s application of the harmless

error standard is debatable.              Therefore, he has also failed to

demonstrate entitlement to a COA on issues three through eight.



ISSUE 9:    Whether the trial court, by forcing Hood to elect between
            his constitutional rights, created a constructive
            ineffective assistance of counsel requiring automatic
            reversal


       Hood contends that the state trial court’s order appointing

a psychiatrist assured that defense counsel’s assistance would

be ineffective.         He argues that the alternatives provided defeated

the adversarial nature of the proceedings, inasmuch as the common

thread to       each    alternative      was   that    the    State   would     receive

full     disclosure.        Hood     asserts     that    the       district     court’s

determination that he established no Strickland prejudice as a

result     of    this    error     was   based    on    the     court’s       erroneous

determination that the Ake errors were harmless trial errors rather

than structural errors and, therefore, that he is necessarily

entitled to a COA on this issue as well.

       As a prefatory matter, we note that the issue whether Hood

exhausted       his    “constructive”     ineffective        assistance   claim     was


                                          24
raised in the district court.               In his § 2254 petition, Hood

contended that “the facts and argument set forth in this Claim were

presented to the State habeas court as part of Claims 1 and 2.”

The State argues, however, that Hood presented this claim for the

first time in his federal habeas proceedings and that it was

therefore procedurally barred.         The district court did not address

the State’s procedural bar contention, instead disposing of the

claim on its merits.

     A    review   of   the   state    habeas   application   reveals   that

this “constructive” ineffective assistance claim was not raised and

therefore was not exhausted.          See Nobles v. Johnson, 127 F.3d 409,

420 (5th Cir. 1997) (exhaustion requirement is not met merely

because the facts necessary to support the federal claim were

before the state court). When a claim is unexhausted and therefore

procedurally barred, however, it may nevertheless be denied on the

merits.    Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir. 2002).

Hood would be precluded from raising his “constructive” ineffective

assistance claim in the state courts under Texas’s abuse of the

writ doctrine, because he has cited no cause for his failure to

raise this claim in his state habeas application.         It is therefore

procedurally barred.      See Nobles, 127 F.3d at 423.

     Notwithstanding the applicability of procedural bar, however,

we find that this claim fails on its merits, because it hinges on

Hood’s contention that he is entitled to a COA on the issue whether

Ake errors are structural. As previously discussed, in the absence

of clearly established Supreme Court law holding that Ake errors


                                       25
are structural, Hood cannot demonstrate an entitlement to a COA on

that issue.     Therefore, he is not entitled to a COA on his

constructive ineffective assistance claim.       In addition, White

supports the district court’s determination that, because the Ake

error was harmless, Hood was precluded from establishing Strickland

prejudice.    See 153 F.3d at 208; R. 2, 499.

                                 III

     Hood has not established an entitlement to a COA on any of the

issues raised herein, and, therefore, his motion to expand the COA

grant is

DENIED.




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