    Case: 19-70018    Document: 00515412142     Page: 1   Date Filed: 05/11/2020




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

                                                                       FILED
                                 No. 19-70018                      May 11, 2020
                                                                   Lyle W. Cayce
                                                                        Clerk



JAMAAL HOWARD,

                                           Petitioner–Appellant,

versus

LORIE DAVIS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

                                           Respondent–Appellee.




                Appeal from the United States District Court
                     for the Eastern District of Texas




Before SMITH, COSTA, and HO, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Jamaal Howard, a Texas death-row inmate, moves for a certificate of
appealability (“COA”) to contest the denial of his petition for a writ of habeas
corpus. Because reasonable jurists would not dispute the issues, we deny the
motion.
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                                           No. 19-70018
                                                I.
      After a jury deemed Howard competent to stand trial, another jury con-
victed him of capital murder. 1 Based on the jury’s answers to the special
issues, the trial judge sentenced Howard to death.

      Howard filed a state habeas application raising a bevy of claims, includ-
ing the ineffective-assistance-of-counsel (“IAC”) ones pressed in this motion.
As relevant, Howard complained that his lawyer had failed to investigate and
proffer evidence of his mental illness that would have (1) resulted in a life
instead of death sentence; (2) persuaded the jury that he was incompetent to
stand trial; and (3) shown that his Miranda waiver was neither knowing nor
intelligent. The trial court recommended denying relief. The TCCA agreed.
See Ex parte Howard, No. WR-77,906-01, 2012 WL 6200688, at *1 (Tex. Crim.
App. Dec. 12, 2012) (per curiam) (unpublished).

      Howard petitioned for federal habeas, raising the same claims. 2 The dis-
trict court declined to issue the writ, holding that, though Howard had ex-
hausted the claims, he had failed to show that the state courts unreasonably
applied federal law. See 28 U.S.C. § 2254(d). Now Howard seeks a COA. 3



      1In affirming the conviction, the Texas Court of Criminal Appeals (“TCCA”) described
the murder:
           [Howard] stole a gun from his grandfather the night before the murder
      and hid it. Despite his family’s efforts to persuade him to turn over the gun,
      [Howard] refused. The following morning, [Howard] retrieved the gun and
      walked several blocks from his house to the Chevron store. After peering in
      the windows, he entered the store, went into the secured office area where the
      victim was sitting, cocked the gun, and shot the victim in the chest. [Howard]
      stole $114.00 from the cash register and reached over the dying victim to steal
      a carton of cigarettes before leaving. The offense was recorded on videotape.
Howard v. State, 153 S.W.3d 382, 383–84 (Tex. Crim. App. 2004) (per curiam).
      2 The petition asserted other claims not before us. Separately, Howard moved for an
evidentiary hearing, which the district court denied.
      3   The district court denied one.
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                                       No. 19-70018
                                              II.
       Howard deserves a COA only if he “has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He
       satisfies that standard by demonstrating that his application
       involves issues that are debatable among jurists of reason, that
       another court could resolve the issues differently, or that the issues
       are suitable enough to deserve encouragement to proceed
       further.[ 4]
“A court of appeals should limit its examination at the COA stage to a threshold
inquiry into the underlying merit of the claims, and ask only if the District
Court’s decision was debatable.” Buck v. Davis, 137 S. Ct. 759, 774 (2017)
(cleaned up). Because Howard sits on death row, we resolve doubts in favor of
issuing a COA. See, e.g., Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.
2000).

       To prove IAC, Howard must show that counsel’s performance was objec-
tively unreasonable and prejudiced him. Strickland v. Washington, 466 U.S.
668, 687–88, 694 (1984). Courts strongly presume that the performance was
good enough. Rockwell v. Davis, 853 F.3d 758, 761 (5th Cir. 2017).

       “[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Wash-
ington, 466 U.S. at 691. “[A] particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances,” but we still
“apply[] a heavy measure of deference.” Id. A lawyer’s work can be deficient
where he fails, at the punishment phase, to look into and present mitigating
evidence of the defendant’s life history or mental illness. 5


       4Raby v. Davis, 907 F.3d 880, 883 (5th Cir. 2018) (cleaned up), cert. denied, 139 S. Ct.
2693 (2019).
       See, e.g., Williams v. Taylor, 529 U.S. 362, 395–96, 398 (2000); see also Lockett v.
       5

Anderson, 230 F.3d 695, 711 (5th Cir. 2000) (“It is clear that defense counsel’s failure to
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                                        No. 19-70018
       Because Howard exhausted the relevant claims, the district court’s job
was to determine whether the state adjudications were contrary to, or unrea-
sonably applied, clearly established federal law as determined by the Supreme
Court, or unreasonably determined the facts. See 28 U.S.C. § 2254(d)(1)–(2).
So, in this posture, we ask whether it’s debatable that “there is any reasonable
argument that counsel satisfied [Washington’s] deferential standard.” 6

                                               A.
       Howard first seeks a COA for the issue of whether his lawyer failed to
investigate, develop, and present mitigating evidence of Howard’s life history
and mental issues. “[T]he record is replete,” he says, “with a picture of a bum-
bling attorney who was doing the bare minimum to get through a trial that
could not end soon enough[.]” “Had counsel’s performance not been deficient,
there is a reasonable probability that Mr. Howard would have been sentenced
to life instead of death.”

       More concretely, Howard urges that an effective attorney would have
(1) hired an expert to examine Howard and gather a life history “for mitigation
purposes”; 7 (2) discovered records suggesting that Howard injured his head in
1997; 8 and (3) presented more witnesses and questioned them better.


investigate the basis of his client’s mitigation defense can amount to [IAC].”).
       6 Harrington v. Richter, 562 U.S. 86, 105 (2011); see also Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (“We look to the District Court’s application of AEDPA to petitioner’s con-
stitutional claims and ask whether that resolution was debatable amongst jurists of reason.”).
       7 In an aside, Howard notes that the Eighth Amendment requires that the defendant
be permitted to submit mitigating evidence in seeking to avoid death. See, e.g., Buchanan v.
Angelone, 522 U.S. 269, 276 (1998). True enough. But that jurisprudence establishes the
state’s obligation to permit Howard to submit such evidence—not his attorney’s obligation to
present it. See id.
       8 Howard points to other supposedly undiscovered evidence listed in his habeas peti-
tion, which he merely cross-references. But “a COA applicant waives claims by directing the
appellate court to briefing before the district court to support his request for a COA.”
McGowen v. Thaler, 675 F.3d 482, 497 (5th Cir. 2012).
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                                       No. 19-70018
       The district court rejected Howard’s theories, opining that the state
courts had reasonably adjudicated them. 9 The court noted that “Howard’s trial
counsel did investigate and provide witnesses and records as to Howard’s child-
hood background, educational struggles, depression, and mental health
issues.” The lawyer had called many “lay witnesses, consisting of close family
members, extended family, educators, coaches, neighbors, and friends to testify
regarding his mental decline and odd behavior throughout the years.” “[C]oun-
sel also [used] a trial investigator and obtained Howard’s medical and school
records.”

       Indeed, counsel started and finished the proceedings by highlighting
Howard’s mental issues. In his first remarks during guilt-phase opening argu-
ments, the lawyer emphasized Howard’s impairments. And in closing argu-
ments at the punishment phase, the lawyer stressed that the jury should con-
sider Howard’s mental illness and give him life.

       Howard’s lawyer looped experts in, too, as the district court noted.
Indeed, counsel hired a psychiatrist—Dr. Fred Fason—to conduct an examin-
ation. And twice counsel successfully moved the trial judge to appoint doctors
to evaluate Howard’s competency to stand trial. 10                        Naturally, those


       9 Howard faults the district court for relying on state-court findings that “were pre-
pared by the State for a different Judge eleven years after the trial and were signed off by
the new Judge without a hearing.” But Howard never told the district court that he had a
problem with the state courts’ method of factfinding, so his contention is forfeited. See, e.g.,
Thompson v. Davis, 916 F.3d 444, 460 (5th Cir. 2019) (holding that a COA petitioner could
not press an argument that was not presented to the district court); Garcia v. Davis,
704 F. App’x 316, 321 n.2 (5th Cir. 2017) (same); see also Carty v. Thaler, 583 F.3d 244, 266
(5th Cir. 2009) (holding that, because defendant did not present a specific mitigation-evidence
argument to the district court, she couldn’t assert it on appeal).
       10 To be sure, Duncan was appointed to evaluate Howard’s competency for trial and
not (specifically) to gather mitigation evidence. But much of what his evaluation revealed
also counted as mitigation evidence of Howard’s mental issues. See, e.g., Bell v. Cone,
535 U.S. 685, 699–700 (2002) (observing that guilt-phase evidence relating to the defendant’s
failed insanity defense also served as mitigation evidence of mental illness at the punishment
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                                      No. 19-70018
examinations unearthed evidence about Howard’s mental health. One of the
evaluating psychologists—Dr. James Duncan—testified at the guilt phase11
that Howard was impaired and possibly schizophrenic. And Dr. Fason testified
at punishment about Howard’s mental shortcomings, including that he may
have been schizophrenic.

       Howard’s case is plainly distinguishable, the district court concluded,
from those in which a lawyer totally fails to examine mental health and life
history. See Williams, 529 U.S. at 395–97; Lockett, 230 F.3d at 714. Howard’s
lawyer pursued and presented many witnesses and experts who spoke about
Howard’s mental issues and history, so, the court opined, there is undeniably
a reasonable argument that the lawyer satisfied Washington’s deferential
standard. 12 To say otherwise only second-guesses the lawyer’s performance as
a matter of degree.

       Howard’s protests of inadequate research fail to show a debatable issue
when they are stacked against the lawyer’s investigative efforts and the boun-
tiful testimony concerning Howard’s mental health. 13 “[C]umulative testimony


phase).
       11The same jury sat for punishment after hearing lots of evidence during the guilt
phase about Howard’s mental health and odd behaviors. As noted in Cone, id., because the
same jury sat and little time separated the phases, the evidence presented at the guilt phase
was necessarily and properly considered at punishment, too. See also, e.g., Lockhart v.
McCree, 476 U.S. 162, 181 (1986) (“[I]n most, if not all, capital cases much of the evidence
adduced at the guilt phase of the trial will also have a bearing on the penalty phase[.]”).
Howard’s lawyer repeatedly referred to that evidence in pleading for a life sentence.
       12 See Richter, 562 U.S. at 105 (requiring denial of habeas relief on an exhausted IAC
claim if “there is any reasonable argument that counsel satisfied [Washington’s] deferential
standard”).
       13  Howard asserts in passing that the district court erred in refusing to apply the
American Bar Association’s professional-standards guidelines. But he does not explain what
the guidelines require or why they would make it debatable whether his attorney’s perfor-
mance was deficient. His conclusional contention is therefore waived for inadequate briefing.
See, e.g., Woods v. Cockrell, 307 F.3d 353, 357 (5th Cir. 2002) (holding that a COA movant
had waived an issue because it was briefed inadequately).
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                                       No. 19-70018
generally cannot be the basis of an [IAC] claim.” Richards v. Quarterman,
566 F.3d 553, 568 (5th Cir. 2009). The suggestion that counsel should have
gone even further—say, by finding evidence of a head injury 14 or by hiring yet
another expert—does not show that the district court’s conclusion was debata-
ble. 15 Indeed, Howard’s own state application admitted that his “trial lawyer
did a fairly good job of presenting some type of mental deficiency.”

                                              B.
       Howard’s remaining arguments either do not show a debatable issue or
are forfeited.

                                              1.
       Howard asks leave to appeal the claim that his lawyer “failed to seek
timely and relevant evaluations of the mental condition of Mr. Howard regard-
ing his competence to stand trial.” After two trials on the matter, a jury found
Howard competent.          The district court decided that the state courts had



       Howard also claims that the district court erred in not applying Sixth Amendment
caselaw that postdated his conviction. But, under professional standards from any era, rea-
sonable jurists would not debate that the state courts reasonably applied federal law in hold-
ing that Howard had received effective assistance.
       14 Cf. Johnson v. Cockrell, 306 F.3d 249, 253 (5th Cir. 2002) (“[A]ny evidence about
[the defendant’s] alleged brain injury . . . is all ‘double edged.’ In other words, even if his
recent claims about this evidence is true, it could all be read by the jury to support, rather
than detract, from his future dangerousness.”).
       15 See, e.g., Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir. 1999) (“Did counsel
investigate enough? Did counsel present enough mitigating evidence? Those questions are
even less susceptible to judicial second-guessing.”); see also Washington, 466 U.S. at 689
(“A fair assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight[.]”).
       In addition, Howard only speculates that counsel would’ve obtained other evidence of
mental illness, and jurists would not debate that that’s not enough. See Whitaker v. Quarter-
man, 200 F. App’x 351, 355 (5th Cir. 2006) (“This court has often stated that a petitioner
alleging [IAC] on the basis of a failure to investigate must allege with specificity what the
investigation would have revealed and how it would have changed the outcome of the trial.”
(quotation marks removed)).
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                                   No. 19-70018
reasonably held that Howard’s lawyer adequately pursued the competency
issue.

         Howard points to several alleged omissions: His lawyer (1) “did not even
consider competence until Dr. Fason urged him”; (2) failed to request an ex-
pert’s review of competency until Fason suggested; (3) “did not discuss” Dun-
can’s report with Duncan “until the day [the lawyer] began opening his case on
guilt”; and (4) failed to request a trial on competency but, instead, waited for
the state to do so. Howard did not, however, press those omissions in his
federal petition or contend that they proved ineffectiveness. Instead, as the
district court recognized, the petition was “silent regarding how the state
habeas court [wa]s unreasonable pertaining to its findings of fact and conclu-
sions of law” and failed to explain how the lawyer’s efforts as to competency
were lackluster. We cannot grant a COA on an argument the district court had
no chance to address. See Thompson, 916 F.3d at 460.

         Howard’s other tack is to renew his general investigation-of-mental-
health contentions. Those were presented to the district court, but for reasons
described, they do not raise a debatable issue or deserve to proceed.

                                         2.
         Howard demands a COA on whether his lawyer failed to scrutinize the
knowingness and intelligence of his Miranda waiver and eventual confession.
Howard’s theory is that, if his lawyer had adequately explored his mental
health, then the lawyer would have successfully contended that Howard lacked
the capacity to waive his Miranda rights and confess.

         Howard does not suggest that he would have been acquitted were the
confession excluded. Instead, he complains that the prosecutors were able to
use his Mirandized statement “to demonstrate that Mr. Howard was

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                                     No. 19-70018
calculating and had no remorse, something that was highlighted time and
again . . . in seeking a death penalty.”

      Howard does not explain how a better investigation of his mental health
could somehow have led to a successful challenge to his confession. He fails to
engage with the district court’s reasoning that the evidence showed that How-
ard understood his rights and was not coerced into waiving them and confess-
ing. Indeed, he offers no theory as to why the court’s conclusion was debatable.
Regardless, for reasons described, reasonable jurists could not debate that the
state courts reasonably applied federal law in determining that counsel’s inves-
tigation was good enough.

                                           3.
      Howard directly appeals the denial of an evidentiary hearing.              See
Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016) (construing the same as
a direct appeal). “Because [Howard’s] constitutional claims fail, we need not
address the merits of his evidentiary hearing claim.”           Jackson v. Davis,
795 F. App’x 939, 940 (5th Cir. 2020) (per curiam) (citing Norman, 817 F.3d at
234). But even if we do, see Norman, 817 F.3d at 234 (addressing the merits
despite no need), there is no abuse of discretion, see, e.g., Segundo v. Davis, 831
F.3d 345, 351 (5th Cir. 2016).

                                 *    *    *    *   *

      The motion for a COA is DENIED. The order denying an evidentiary
hearing is AFFIRMED.




                                           9
