                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           April 2, 2004
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 00-41272



CHARLES DEAN HOOD,

                                     Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                     Respondent-Appellee.

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

Before SMITH, WIENER, and STEWART, Circuit Judges.

PER CURIAM:*

     Petitioner-Appellant Charles Dean Hood appeals the district

court’s denial of 28 U.S.C. § 2254 relief.   We affirm.

                     I.   FACTS AND PROCEEDINGS

     Hood’s petition for writ of habeas corpus stems from his 1990

conviction and death sentence for the murders of Ronald Williamson

and Tracie Lynn Wallace.    During the fall of 1989, Hood, who was

employed by Williamson, began living with Williamson and Wallace,



     *
        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this opinion should not be published and is not precedent except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.
Williamson’s girlfriend. On November 1, 1989, Williamson came home

from work for lunch and found a note purportedly written by Wallace

stating that she had gone jogging. Williamson grew suspicious when

he noticed that Wallace’s name had been misspelled and called the

police to report her possible abduction.        When the police arrived

at Williamson’s home, they discovered the bodies of Williamson and

Wallace with gunshot wounds to their heads.

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

independent psychiatrist to assist him in preparing a mitigation

defense at sentencing.    The trial judge granted his motion in part

and issued an order specifying that Hood was to elect in writing

either of two alternatives: (1) Have Dr. Sidney Brooks conduct the

psychiatric examination and report his findings to both parties, or

(2) Hood and the State each designate a psychiatrist who together

would conduct a joint interview of Hood and report only to the

designating parties.

     Although   no   written   election   was   ever   made,   Dr.   Brooks

examined Hood and concluded that he had a brain dysfunction and an

antisocial personality, and that in the future he was likely to act

out his aggressions on other persons or property.         Dr. Brooks did

not testify at trial, but the State presented psychiatric evidence

that, in the future, Hood would probably commit criminal acts of




                                   2
violence and was therefore a continuing threat to society, a

finding necessary for the jury to impose the death penalty.1

     Hood’s conviction and sentence were affirmed by the Texas

Court of Criminal Appeals.2    The Supreme Court of the United States

denied certiorari.3 In April 1997, Hood’s state habeas application

was denied by the Texas Court of Criminal Appeals,4 and in February

2000, Hood sought federal habeas relief.

     Although it ultimately denied habeas relief, the district

court found that Hood’s counsel had misread the trial court’s order

regarding the appointment of a psychiatrist, which in turn had

resulted in a violation, albeit harmless, of his right to a

psychiatrist under Ake v. Oklahoma.5    The district court concluded

that counsel had performed deficiently by assigning to a paralegal

the duty of collecting mitigating evidence to be used at Hood’s

sentencing.      It   therefore   granted   Hood   a   certificate   of

appealability (COA) on (1) whether Hood’s counsel’s misreading of

the trial court’s order regarding Hood’s psychiatric examination

and counsel’s delegating to an untrained legal assistant the


     1
       See TEX. CRIM. PROC. CODE ANN. § 37.071(b)(2) (Vernon 1981 &
Supp. 2003).
     2
       Hood v. State, No. 72,167 (Tex. Crim. App. Nov. 24, 1993)
(unpublished).
     3
         Hood v. Texas, 513 U.S. 834 (1994).
     4
      Ex parte Hood, No. 41,168-01 (Tex. Crim. App. Apr. 21, 1999)
(unpublished).
     5
         470 U.S. 68 (1985).

                                   3
investigation     into    potential      mitigating    evidence     created   a

reasonable probability that the result of his punishment hearing

would    have   been   different   if    counsel’s    performance    had   been

adequate, and (2) whether the cumulative effect of the violations

of Hood’s rights under Ake and his counsel’s deficient performance

deprived him of a fair trial.

                              II.       ANALYSIS

A.   Strickland Prejudice

     1.    Standard of Review

     At issue is Hood’s sentence, not his conviction.                Under the

AEDPA,6 a federal habeas petition may not be granted with respect

to a claim adjudicated on the merits in state court unless that

court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” or “resulted in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.”7      “A decision is contrary to clearly established

Federal law ‘if the state court arrives at a conclusion opposite to

that reached by [the Supreme Court] on a question of law or if the

state court decides a case differently than [the] Court has on a



     6
       Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (1996).
     7
         28 U.S.C. § 2254(d)(1) & (2).

                                         4
set         of    materially         indistinguishable           facts.’”8

“Under § 2254(d)(1)’s ‘unreasonable application’ language, a writ

may issue ‘if the state court identifies the correct governing

legal principle from [the] Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.’”9

      In this case, the “clearly established Federal law” is the

Supreme Court’s decision in Strickland v. Washington,10 governing

claims based on ineffective assistance of counsel.              For Hood to

prevail on such a claim, he must show that (1) his counsel’s

performance was deficient because it fell below an objective

standard of reasonableness, and (2) such deficient performance

prejudiced Hood’s defense.11         Given the limited scope of the COA

grant,      however,   we   need   examine   only   whether   Hood   has   met

Strickland’s prejudice prong, under which he “‘must show that there

is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.              A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.’”12



      8
       Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000) (quoting
Williams v. Taylor, 529 U.S. 362, 413 (2000)).
      9
           Id. (quoting Williams, 529 U.S. at 413).
      10
           466 U.S. 668 (1984).
      11
           Id. at 687-94.
      12
       Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) (quoting
Strickland, 466 U.S. at 694).

                                       5
     For the sentencing phase of a capital case, counsel must

conduct a “reasonably substantial, independent investigation into

potential mitigating circumstances.”13 In determining whether Hood

was prejudiced by a deficient presentation of mitigating evidence,

we must compare the evidence presented at sentencing with the

mitigating    evidence   adduced   in   the   post-conviction   record   to

ascertain if “additional mitigating evidence [is] so compelling

that there is a reasonable probability at least one juror could

have reasonably determined that, because of [Hood’s] reduced moral

culpability, death was not an appropriate sentence[.]”14

     2.     Deficiency of Performance

     Hood contends that if the new mitigating evidence presented

during his state habeas proceeding had been presented during the

penalty-phase proceeding of his trial, there is a reasonable

probability that at least one juror would have voted to spare his

life.     During the penalty phase, the defense’s primary mitigation

witness was Hood’s mother, whose testimony painted the following

picture:     (1) From the time of his birth, Hood’s family moved

frequently; (2) he was hit by a septic truck at age three, injuring

his lower back and leg and possibly causing speech and behavior




     13
       Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en banc)
(internal quotations and citation omitted), cert. denied, 537 U.S.
1104 (2003).
     14
          Id. at 241 (footnote omitted).

                                    6
problems; and (3) he was a chronic truant throughout his short

school career in which he achieved only a seventh grade education.

     The    new    mitigating      evidence       presented     during    the    state

habeas    proceeding      consisted       primarily       of   affidavits,      social

services records, school records, and a social history report.

That evidence augments the evidence of mitigating circumstances

presented    during     the    penalty     phase     of    Hood’s     trial     by   (1)

presenting additional details about his injuries caused by the

septic truck; (2) providing more details regarding his behavioral

problems in school and his learning disability; and (3) adding new

claims that       (a)   Hood   and   his       siblings    suffered    physical      and

emotional abuse at the hands of their domineering father, (b) his

father sexually molested Hood’s two sisters, and (c) Hood may have

suffered some type of brain damage at birth.

     Our determination whether the state court unreasonably applied

Strickland is guided by the Supreme Court’s decisions in Williams

and, most recently, Wiggins v. Smith.15                   In each case, the Court

held that the petitioner had established Strickland prejudice from

counsel’s constitutionally deficient presentation of mitigating

evidence.16 In Hood’s case, however, the mitigating evidence is far

weaker     and    the   evidence     in    support        of   the    death   penalty

considerably stronger than in Williams and Wiggins.                      As we shall


     15
          --- U.S. ----, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).
     16
          See Wiggins, 123 S. Ct. at 2543; Williams, 529 U.S. at 398.

                                           7
explain, this ultimately prevents his establishing the requisite

prejudice.

     We have construed Williams to require that an evaluation of

Strickland prejudice include consideration of both the quantity and

quality of the additional mitigating evidence.17                  Hood presented a

total of 217 pages of mitigating evidence, yet 107 pages of that

evidence, approximately one-half, consists solely of social service

and counseling records pertaining to the sexual abuse suffered by

Hood’s sisters.       Even though these social service documents verify

the tragic circumstances surrounding the relationship of Hood’s

sisters with their father, as well as their mother’s inadequate

response to the abuse, they do not specifically relate to Hood.

     The    quality     of   the   remaining      evidence   is    wanting.       For

example, State witness Dr. Richard Coons, a psychiatrist, testified

on cross-examination during the penalty phase that children like

Hood, who had been “nearly crushed to death by a truck,” may

develop brain or personality problems if there was damage to the

brain.     Hood’s hospital records which document the injuries he

received from     the    septic     truck   make    clear,     however,    that    he

suffered no head injury. Additionally, despite testimony that Hood

suffered    speech    problems     after    his    accident,      trial   witnesses

Cynthia Insashi and Peggy Kliener testified that they had not

noticed anything unusual about Hood’s speech.                     Furthermore, no


     17
          See Neal, 286 F.3d at 243.

                                        8
medical records were adduced to support or expand on Mrs. Hood’s

affidavit testimony that her son was born with an enlarged head and

black face, suggesting possible brain damage.

       Evidence that Hood’s sisters were sexually abused by their

father is not of the same quality as evidence previously held to

have    the   capability   of   reducing     a   capital   defendant’s   moral

culpability in the eyes of the jury.18             Significantly, there is no

testimony that Hood knew of his sisters’ abuse or how he was

affected by it.

       Furthermore,   while     there   is   new    evidence   that   Hood   was

physically abused by his domineering father, Hood had categorically

denied during his evaluation with Dr. Brooks that he had ever been

physically abused by either parent. The State certainly would have

introduced this fact to the jury to rebut any allegation of abuse,

and such conflicting evidence would have created a credibility

issue for the jury which might not have been resolved in Hood’s

favor.

       Although the mitigating evidence revealed that Hood’s I.Q. was

low-average, it was nevertheless markedly higher than those of

Williams and Neal.19 Evidence that Hood is predisposed to impulsive

       18
        Cf. Wiggins, 123 S. Ct. at 2533 (Wiggins gang-raped in
foster care and sexually abused by his Job Corps supervisor); Neal,
286 F.3d at 238 (Neal forced to sodomize 30 to 40 inmates in
succession and raped by two others).
       19
        See Williams, 529 U.S. at 396 (“‘[B]orderline mentally
retarded’”); Neal, 286 F.3d at 237 (I.Q. of 54, “low end of mild
retardation”).

                                        9
behavior is likewise undercut by the fact that the murders of

Williamson and Wallace were premeditated.20

     Even though Dr. Marc Walter’s post-trial neuropsychological

examination   “suggest[ed]”   that    Hood   had   brain   damage   or

dysfunction, with an impairment in the left temporal lobe of his

brain, Dr. Walter’s report did not, for purposes of reducing his

moral culpability, connect this purported brain damage with Hood’s

ability or inability to control his behavior.      Rather, Dr. Walter

was of the opinion that Hood’s brain dysfunction rendered him

incapable of proceeding pro se in his state habeas proceedings.

     Also, mitigating evidence of Hood’s brain dysfunction is

cumulative of testimony on that same subject that was heard by the

jury at Hood’s penalty-phase proceeding.     During defense counsel’s

cross examination of State psychiatrist Dr. Richard Coons, the jury

learned that Dr. Brooks had diagnosed Hood with “neurophysiological

brain dysfunction with probable left temporal cortical and deep

temporal limbic brain dysfunction.”    Dr. Coons testified that Dr.

Brooks’s diagnosis referred to a biological dysfunction within the

brain and that there are scientists who theorize that a congenital

problem with the brain may cause specified individuals to be

conscienceless, causing the antisocial personality disorder with

which Hood was diagnosed.   The jury thus learned that Hood had been


     20
       Cf. Williams, 529 U.S. at 398 (“[I]n each case [Williams’s]
violent behavior was a compulsive reaction rather than the product
of cold-blooded premeditation.”).

                                 10
diagnosed by one physician with a brain disorder and, furthermore,

that such a disorder might possibly be the cause of his behavior.

       We weigh the totality of the mitigating evidence adduced at

trial and in the state habeas proceeding against the aggravating

evidence.21 During both the guilt-innocence and penalty phases, the

jury    heard    the   following    aggravating   evidence   concerning      the

offense, Hood’s lack of remorse, his history of violence, his

criminal history, and his future dangerousness.

       The jury learned that Hood shot each victim once in the head,

placed plastic bags over Tracie Wallace’s head and upper torso,

affixed the bags to her body with duct tape, and stuffed her nude

body into a water heater closet.            Hood showed no remorse for the

murders.22      That same morning, Hood calmly ordered flowers for Jill

Workman, his girlfriend in Indiana, representing to the florist

that he was Ronald Williamson, using Williamson’s credit card,

wearing      Williamson’s    gold   watch   and   showing    it   off   to   the

employees.       At a pawn shop on that same day, Hood traded one of

Williamson’s diamond rings for a wedding band set, presumably for

Jill Workman.      He also attempted to cash two company checks that he

had     stolen     from     Williamson’s    computer   business,        forging

Williamson’s signature on the checks.


       21
            Id. at 397.
       22
        Cf. id. at 367, 398 (Williams alerted police to his
responsibility for the homicide, showed remorse, and assisted their
investigation).

                                       11
     While Hood was driving from Texas to Indiana in Williamson’s

Cadillac, he called Workman on Williamson’s cell phone, telling her

he was driving a new car that he had just purchased and that he was

going to give her a gold watch.   Workman testified that during this

conversation Hood sounded “excited” and “happy.” The day after the

murders, Hood    called   Williamson’s   son,   told   him   he   had   been

arrested for his father’s murder, and denied any involvement in the

crime.

     The jury also learned that Hood had a history of violent

conduct.23   He had assaulted his father during an altercation with

his (Hood’s) girlfriend, Trava Henry, and her mother.             Hood told

the responding officer that he would beat up or kill anyone who

tried to touch him.   Hood also assaulted Henry when she attempted

to end their relationship, and he displayed sexual aggression

towards her.

     Amy Hartman testified that Hood had raped her when she was 16

years old and told her that if he ever saw her again or if she

reported the rape, he would kill her.           Hood was fired from a

job at a fast food restaurant after only three days on the job when

he engaged in a verbal altercation with another employee, and he




     23
       Cf. Wiggins, 123 S. Ct. at 2543-44 (Wiggins had no record
of violent conduct and no prior convictions).

                                  12
even fought with a fellow inmate while incarcerated awaiting trial

on the instant offense.24

      The jury learned additionally that Hood had a prior criminal

record.      He had juvenile adjudications for breaking and entering

and had been convicted as an adult of the felony offenses of

forgery and theft.      While on parole, he was not prompt for his

parole appointments, and he failed to complete his parole because

he absconded to Texas.    Finally, the jury heard testimony that Hood

had been diagnosed with antisocial personality disorder, was a

sociopath with little chance of rehabilitation, and would more

likely than not pose a future danger to the public.

      We conclude that, when viewed in the light of the quality of

the mitigating evidence as compared with the strength of the

aggravating evidence, Hood has failed to show that the “additional

mitigating evidence [is] so compelling that there is a reasonable

probability at least one juror could have reasonably determined

that, because of [Hood’s] reduced moral culpability, death was not

an   appropriate     sentence[.]”25        The   state   court’s   prejudice

determination was therefore a reasonable application of Strickland,

and Hood is not entitled to habeas relief on this claim.

B.   Cumulative Error


      24
        Cf. Williams, 529 U.S. at 395-96 (Williams received
commendations for good behavior in prison and thrived in its
structured environment).
      25
           See Neal, 286 F.3d at 241 (footnote omitted).

                                      13
     In support of his cumulative error argument, Hood relies

solely on his contention that if the defense had presented the new

mitigating evidence adduced during his state habeas proceeding, at

least one juror might have determined that a life sentence was

appropriate.     “[F]ederal habeas corpus relief may only be granted

for cumulative errors in the conduct of a state trial where (1) the

individual errors involved matters of constitutional dimension

rather than mere violations of state law; (2) the errors were not

procedurally defaulted for habeas purposes; and (3) the errors ‘so

infected the entire trial that the resulting conviction violates

due process.’”26 To determine whether application of the cumulative

error doctrine warrants relief, we “review the record as a whole to

determine whether the errors more likely than not caused a suspect

verdict.”27     Claims that are not prejudicial, however, cannot be

cumulated, regardless of the number raised.28        Hood’s failure to

satisfy     Strickland’s   prejudice    prong   precludes   his   showing

constitutional error with regard to his ineffective assistance

claims.29     Inasmuch as counsel’s alleged deficiencies resulted in

no prejudice, Hood’s claim of ineffective assistance of counsel



     26
       Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992) (en
banc) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
     27
        Spence v. Johnson, 80 F.3d 989, 1001 (5th Cir. 1996)
(internal quotations and citation omitted).
     28
          Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996).
     29
          See Strickland, 466 U.S. at 697.

                                   14
cannot be cumulated with the Ake error claim, so his cumulative

error claim necessarily fails.30

                           III.   CONCLUSION

     For the foregoing reasons, the judgment of the district court

is AFFIRMED.




     30
          See Westley, 83 F.3d at 726.

                                   15
