     Case: 12-70016   Document: 00512445043      Page: 1   Date Filed: 11/18/2013




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

                                                                  FILED
                                                              November 18, 2013

                                 No. 12-70016                    Lyle W. Cayce
                                                                      Clerk

DERRICK DEWAYNE CHARLES,

                                            Petitioner - Appellant,
v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                            Respondent - Appellee.



                Appeals from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:
      Derrick Dewayne Charles appeals the district court’s denial of his 28
U.S.C. § 2254 application challenging his death sentence for the murder of three
people. The district court denied his application, but granted a Certificate of
Appealability (“COA”) on his claim that he was prejudiced by his counsel’s
deficient performance at trial. We AFFIRM.
                                       I.
      In 2002, Texas charged Charles with capital murder for killing three
victims during the same criminal transaction. Charles pleaded guilty and the
case proceeded to the punishment phase, in which the jury deliberated the
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                                 No. 12-70016

special issues of Charles’s future dangerousness and whether sufficient
circumstances mitigated against a death sentence.
      In seeking a death sentence, the state emphasized Charles’s prior
lawlessness, which the district court described as follows:
      While a juvenile, the police arrested Charles several times. His
      prior crimes included trespass of an apartment, assault, fighting
      with police officers, several incidents of burglary, theft, and
      threatening teachers. While in Texas Youth Commission (“TYC”)
      custody his numerous rule violations resulted more than one
      hundred write-ups and confinement in lock-down twenty-two times.
      At TYC he bragged about selling dope, threatened staff, fought with
      other students, and received a “chronic serious offender”
      classification. Upon his release, he failed to attend weekly parole
      appointments. After serving time in the Texas Department of
      Criminal Justice (“TDCJ”) for burglary of a habitation, Charles only
      met with his parole officer once.
Charles v. Thaler, No. 4:09–0592, 2011 WL 5040438, *4 (S.D. Tex. Oct. 24,
2011).
      In response, defense counsel focused on proving that Charles would not
be a future societal threat. The district court summarized the testimony
presented:
            Trial counsel began the defense’s case for a life sentence
      during the cross-examination of the State’s witnesses. Trial
      counsel’s cross-examination revealed that Charles was young, was
      remorseful for the murders, only acted aggressively when provoked
      by others, had committed only minor infractions while in TYC
      custody, had never assaulted correctional officers, and was
      generally a good inmate. Also, trial counsel elicited testimony that
      one victim’s sister forgave Charles for the murders.
            Trial counsel affirmatively presented punishment phase
      testimony through four witnesses. Trial counsel called Dr. Walter
      Quijano, a psychologist who often testified in capital murder trials,
      to describe how prison security measures and classification systems
      would lessen Charles’[s] future dangerousness. Trial counsel
      supported Dr. Quijano’s testimony with testimony from a
      correctional officer who explained that, since his arrest for capital


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       murder, Charles had only committed two minor infractions of jail
       rules. The defense also solicited testimony to counter the State’s
       negative evidence from two juvenile corrections officers from TYC
       who described Charles as a likeable youth and good student whose
       behavior improved while in custody. Trial counsel focused closing
       arguments on showing that Charles would not be a future danger
       to society.
Charles, 2011 WL 5040438, at *7–8.
       Pursuant to the jury’s answers to the special issues based on this
evidence, the trial court sentenced Charles to death. The Texas Court of
Criminal Appeals affirmed Charles’s conviction and sentence on direct appeal.
Charles v. Texas, No. 74,694, 2005 WL 283598 (Tex. Crim. App. Feb. 2, 2005)
(unpublished).
       While his direct appeal was pending, Charles filed an application for state
habeas relief, raising an ineffective-assistance-of-counsel claim under the Sixth
Amendment. Charles argued that his trial counsel inadequately investigated
and presented mitigating evidence at sentencing. More specifically, Charles
cited the failure of his trial counsel to investigate and present mitigating
evidence regarding his potential drug use at the time of the crime, troubled
family background, and mental health history.1 Charles argued that trial
counsel should have discovered this mitigating evidence (1) from his stepfather,
Leroy Phillips, who trial counsel did not call as a witness, and (2) from Charles’s
medical records from his hospitalization at Gulf Pines Hospital as an
adolescent, which trial counsel knew about but never found.2



       1
          On appeal to this court, Charles has abandoned his argument regarding his potential
drug use at the time of the crime. St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 445
(5th Cir. 2000) (“Generally, we deem abandoned those issues not presented and argued in an
appellant’s initial brief.”).
       2
         Charles’s trial counsel was aware of the Gulf Pines records but his investigator, like
the state, gave up looking for them because the hospital had shut down.

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      At the state habeas proceedings, Phillips submitted an affidavit describing
testimony he would have given if trial counsel had called him as a witness at
Charles’s trial. The district court summarized the affidavit as follows:
      Charles—who was born prematurely and had two seizures as an
      infant—had a history of depression. His mother’s own undiagnosed
      schizophrenia made her an inattentive parent who sometimes failed
      to provide adequate food and clothing. Instability, poverty, discord,
      and turbulence marked Charles’[s] home life. His mother’s own
      mental problems allegedly prevented her from seeing to fruition
      Charles’[s] treatment for depression.
Charles, 2011 WL 5040438, at *15.
      Ultimately, Charles’s trial counsel decided not to call Phillips as a witness
because his testimony, in the opinion of trial counsel, would not be helpful.
According to trial counsel, Phillips gave Charles’s bloody clothing from the crime
to police, turned in Charles for prior crimes, suffered an assault from Charles,
and attempted to teach Charles right from wrong throughout his life.
      The Gulf Pines Hospital records, which state habeas counsel discovered by
contacting Charles’s psychologist, Dr. Lawrence Ginsberg, outlined Charles’s
adolescent mental and behavioral problems. When Charles was ten years old,
Dr. Ginsberg evaluated Charles and recommended hospitalization at Gulf Pines.
Upon Charles’s first admission in 1993, the hospital provisionally diagnosed him
with Oppositional Defiant Disorder, Depressive Disorder, and Rule Out Seizure
Disorder. A psychological report suggested that further testing could rule out
neurological problems. Admission records noted that ten-year-old Charles had
been violent towards peers, easily lost his temper, had witnessed domestic
violence, easily became angered, opposed authority, and started treatment at the
hospital due to “serious dysfunctionality at home and at school.”
      In addition to his behavioral problems, the hospital admission records
showed that Charles had risk of suicide, mental anguish, and a medical history
that included seizures as an infant, premature birth, and occasional stuttering.

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A psychosocial assessment noted that Charles came from a “very deprived
background,” did not have many opportunities for leisure and recreation, and
lived in a bad area. Although the psychosocial assessment suspected “some
other significant problems at home,” it identified Charles’s family as supportive,
“genuinely concerned about [him],” and hopeful that he could go back to school
without “fighting and being mean.”
      After Charles’s initial admission to Gulf Pines in 1993, Dr. Ginsberg
assumed responsibility for Charles’s treatment and recommended that he stay
two or three weeks in the hospital.         Instead of following Dr. Ginsberg’s
recommendation, however, Charles’s mother removed him from Gulf Pines after
two days and scheduled additional treatment through outpatient therapy.
Charles’s outpatient therapy continued intermittently until 1995, when his
parents again admitted him to Gulf Pines due to depression, decreased amounts
of sleep, irritability, and episodes of violence, which included threats and
fighting at school, explosive outbursts, and generally disruptive behavior:
      On the day of admission, [Charles] had been expelled from school for
      the fourth time. He threatened to flatten the tires of a teacher’s car.
      He had been fighting and had been assaultive in school. He was
      using profane language in school and had been very disruptive.
      Mother notes decreased amounts of sleep, irritability, labile mood,
      crying spells, impaired memory, and impaired concentration. The
      patient was charged by the police with assault by threat.
      Records from Charles’s second visit to Gulf Pines chronicled a range of
behavioral and mental issues similar to those of his first visit, but provide more
detail into Charles’s potential mental problems.        Specifically, the records
explained that Charles tested “in the intellectually deficient range of
intelligence,” likely had “some organic damage that is contributing to his
behavior problems,” and exhibited “some signs of neurological problems.”
Results from neurological testing, however, showed that Charles was within
normal limits.

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      Charles remained at Gulf Pines for three weeks during his second visit.
During this time, Charles exhibited poor behavior. He swore at and stole from
peers, destroyed property, refused to participate in and disrupted therapy
sessions, and was described as “silly, vulgar, immature, superficial, [and] non-
working.” Upon his discharge, however, the records described Charles as stable
and as demonstrating an improved mood, listing his parents as “very supportive”
and his mother as “healthy [and] willing to follow direction.”
      After reviewing this undiscovered mitigating evidence, the state habeas
court denied Charles’s petition for habeas relief, reasoning that Charles’s trial
counsel did not perform deficiently and that trial counsel made “a reasonable,
plausible trial decision, made after thorough investigation, to concentrate on the
future dangerousness special issue.”
      In its factual findings, the state habeas court described the efforts trial
counsel took to investigate mitigating evidence:
      [Trial counsel] interviewed witnesses, talked to [Charles’s] family
      about possible mitigating evidence, obtained discovery, reviewed
      the State’s file, employed an investigator, vigorously cross-
      examined the State’s witnesses, made appropriate trial objections,
      presented mitigation evidence at punishment, . . . were familiar
      with the facts of the case and the applicable law, and talked to the
      applicant about the offense, potential witnesses, the pending trial,
      and his background and life.
With regard to the efforts trial counsel took to find the Gulf Pines records
specifically, the state habeas court found that Charles’s trial counsel “exercised
due diligence in attempting to locate [the records].” Trial counsel employed a
investigator who “had always been able to previously locate records or witnesses
who were thought to be unavailable” to locate the Gulf Pines records, and the
investigator was unable to locate the records “after a thorough search.”
      Ultimately, the state habeas court concluded that Charles failed to show
that his trial counsel’s performance was factually similar to the situations in

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Rompilla v. Beard, 545 U.S. 374 (2005), Wiggins v. Smith, 539 U.S. 510 (2003),
and Williams v. Taylor, 529 U.S. 362 (2000), where counsel were found
ineffective. The court reasoned:
      Trial counsel cannot be considered ineffective for not presenting
      [Charles’s] Gulf Pines Hospital records whose slight mitigating
      value, if any, would have been lost amidst the harmful information
      contained in the records about the applicant’s anger, hostile
      behavior, and oppositional defiance; the applicant fails to show that
      the results of the proceeding would have been different if such
      records [had] been presented.
      Charles appealed to the Texas Court of Criminal Appeals, which also
denied Charles’s petition for habeas relief. After its own review of the record,
the Court of Criminal Appeals adopted all of the lower court’s findings and
conclusions, except that it did not accept the lower court’s finding that trial
counsel “exercised due diligence in attempting to locate [Charles’s] Gulf Pines
Hospital records.” Ex parte Charles, No. 67,171-01, 2008 WL 556015, at *1 (Tex.
Crim. App. Feb. 27, 2008). The Court of Criminal Appeals did not explain why
it agreed with the lower state habeas court in denying Charles relief, yet
disagreed with the lower court’s finding on the diligence of trial counsel
regarding the Gulf Pines records. Charles then filed a federal petition for a writ
of habeas corpus, governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”).
      After an extensive review of the state habeas proceedings, the district
court denied Charles’s petition, concluding that the state habeas court’s
determination was not unreasonable under the standard of review imposed by
AEDPA. See Charles, 2011 WL 5040438, at *27. Nonetheless, the district court
stated that “[w]hile settled precedent forecloses relief on Charles’[s] Strickland
claim, the Court finds his arguments deserve ‘encouragement to proceed




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further’” and certified “appellate review of the issues raised by Charles’[s]
petition.” Id. (citation omitted).
                                             II.
       “In reviewing a district court’s decision on a § 2254 application, we review
the district court’s findings of fact for clear error and its conclusions of law de
novo.” Miller v. Thaler, 714 F.3d 897, 901 (5th Cir. 2013) (quoting Harrison v.
Quarterman, 496 F.3d 419, 423 (5th Cir. 2007)).
       Charles’s petition is also subject to the deferential standards of AEDPA,
as codified in 28 U.S.C. § 2254(d). Id. Section 2254(d) bars federal habeas relief
for claims previously adjudicated on the merits by a state court, subject to two
exceptions. See Premo v. Moore, 131 S. Ct. 733, 739 (2011). AEDPA permits
federal habeas relief where the state court adjudication either (1) “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States,” or (2) “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.” § 2254(d). Moreover, a factual determination made in state court
“shall be presumed to be correct,” § 2254(e)(1), and federal courts must apply
§ 2254(d)(1) using “the record that was before the state court.” Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011).3
       “Section 2254(d) sets forth a ‘highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the
benefit of the doubt.’” Miller, 714 F.3d at 901 (quoting Pinholster, 131 S. Ct. at
1398). This deferential standard “stops short of imposing a complete bar on
federal court relitigation of claims already rejected in state proceedings” and


       3
          Charles does not claim that his state habeas counsel was ineffective and, therefore,
cannot rely on the Supreme Court’s recent decision in Trevino v. Thaler, 133 S. Ct. 1911
(2013), to argue that Pinholster does not bar presentation of new evidence in federal court.

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requires the state prisoner to show that the state court’s ruling “was so lacking
in justification that there was an error well understood and comprehended in
existing law beyond any possibility.” Harrington v. Richter, 131 S. Ct. 770,
786–87 (2011).
       When reviewing a state habeas court’s decision under AEDPA’s deferential
standard of review, we review “only the ultimate legal determination by the
state court—not every link in its reasoning.” Trottie v. Stephens, 720 F.3d 231,
241 (5th Cir. 2013); see also Green v. Thaler, 699 F.3d 404, 414 (5th Cir. 2012)
(“[W]e only review the state court’s actual decision, not the written opinion on
which it is based.”); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc)
(“[O]ur focus on the ‘unreasonable application’ test under Section 2254(d) should
be on the ultimate legal conclusion that the state court reached and not on
whether the state court considered and discussed every angle of the evidence.”).4
                                             III.
       Under Strickland, we apply a two-pronged approach to ineffective-
assistance-of-counsel claims. See, e.g., Trottie v. Stephens, 720 F.3d 231, 241 (5th


       4
         As a threshold matter, Charles challenges the method we use in adjudicating habeas
appeals, arguing that Supreme Court precedent requires “scrutinizing state court reasoning,”
which is inconsistent with our precedent. Charles relies on the Supreme Court’s decisions in
Early v. Packer, 537 U.S. 3 (2002), and Wiggins, 539 U.S. 510. Because, absent an intervening
change in the law, one panel of this court may not overrule or disregard another panel’s
decision, we are bound by Trottie, 720 F.3d at 241, and Green, 699 F.3d at 414, which follow
our prior en banc precedent in Neal, 286 F.3d at 246. Therefore, we cannot alter the way we
apply AEDPA deference as Charles argues. See, e.g., In re Pilgrim’s Pride Corp., 690 F.3d 650,
663 (5th Cir. 2012) (“In order for one panel to overrule another, there must be an intervening
change in the law, such as by a statutory amendment, or the Supreme Court, or by our en banc
court.” (internal quotation marks and citation omitted)).
        Moreover, even if we were at liberty to evaluate Charles’s argument anew, it would fail
in light the text of § 2254(d) and Supreme Court precedent. See § 2254(d)(1) (precluding
habeas relief in the absence of a state-court “decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law” (emphasis added)); Schriro v.
Landrigan, 550 U.S. 465, 473 (2007) (stating that AEDPA review does not involve “whether
a federal court believes the state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold”).

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Cir. 2013). Strickland’s first prong requires the petitioner to show that trial
counsel’s representation was deficient—that is, it “fell below an objective
standard of reasonableness.” 466 U.S. at 688. Under the second prong, a
petitioner must demonstrate prejudice: a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.”   Id. at 694. A failure to establish either element is fatal to a
petitioner’s claim. Id. at 697.
      In applying AEDPA deference to an ineffective-assistance-of-counsel claim,
“the pivotal question is whether the state court’s application of the Strickland
standard was unreasonable.” Richter, 131 S. Ct. at 785. The Supreme Court has
explained:
      This is different from asking whether defense counsel’s performance
      fell below Strickland’s standard. Were that the inquiry, the
      analysis would be no different than if, for example, this Court were
      adjudicating a Strickland claim on direct review of a criminal
      conviction in a United States district court. Under AEDPA, though,
      it is a necessary premise that the two questions are different. For
      purposes of § 2254(d)(1), “an unreasonable application of federal law
      is different from an incorrect application of federal law.” Williams,
      [529 U.S.] at 410. A state court must be granted a deference and
      latitude that are not in operation when the case involves review
      under the Strickland standard itself.
Id. Hence, while “[s]urmounting Strickland’s high bar is never an easy task,”
“[e]stablishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult.” Id. at 788. Both the Strickland
standard and the AEDPA standard are “highly deferential,” and “when the two
apply in tandem, review is ‘doubly’ so.” Id. (citation omitted).
                                       A.
      We now address whether the state habeas court unreasonably applied
Strickland’s deficiency prong. Charles asserts that the state habeas court
unreasonably applied Strickland because it failed to address whether trial


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counsel unreasonably narrowed the scope of his sentencing investigation.
Specifically, Charles contends that, had trial counsel conducted a proper
investigation, he would have discovered additional mitigating evidence
regarding Charles’s mental health history, troubled family background, and his
stay at Gulf Pines Hospital. In light of his trial counsel’s failure to discover this
evidence, Charles argues that he has a “paradigmatic Wiggins case” and that
trial counsel’s decision not to investigate further was uninformed. As recognized
by the district court and the parties, Charles’s most troubling ineffective
assistance allegation centers on the failure of trial counsel to discover the
records from Gulf Pines Hospital, which chronicled Charles’s adolescent mental
and behavioral problems.
      In evaluating trial counsels’ performance for deficiency, Strickland
requires a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” 466 U.S. at 689. Ultimately, the
defendant must show that the errors were so egregious as to deprive the
defendant of the “counsel” guaranteed by the Sixth Amendment. Richter, 131
S. Ct. at 787. In short, judicial scrutiny of counsel’s performance is highly
deferential. Id. at 788; see also Strickland, 466 U.S. at 689. But despite the
wide latitude afforded trial counsel in evaluating their actions, it is not
boundless.
      In investigating potential mitigating evidence, counsel must either (1)
undertake a reasonable investigation or (2) make an informed strategic decision
that investigation is unnecessary. Higgins v. Cain, 720 F.3d 255, 265 (5th Cir.
2013) (explaining that under Strickland, counsel must “research relevant facts
and law, or make an informed decision that certain avenues will not prove
fruitful”); see also Strickland, 466 U.S. at 690–91 (“[S]trategic choices made after
less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.”).

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      Because, as the parties agree, trial counsel did not discover the Gulf Pines
Hospital records and similar information regarding Charles’s mental health
history, we address the latter inquiry: whether the state habeas court
unreasonably applied Strickland in reviewing Charles’s petition.
      To answer that question, Wiggins, 539 U.S. 510, provides helpful guidance.
In Wiggins, the petitioner’s attorneys failed to investigate and present
mitigating evidence of the petitioner’s dysfunctional family and social history,
despite having some information available to them in a pre-sentence
investigation report and social service records. Id. at 516, 534. The Court
concluded that counsel’s failure to investigate Wiggins’s life history fell short of
professional standards, basing its decision on a multi-faceted, “reasonableness
in all the circumstances” approach: (1) counsel cut short their investigation after
“having acquired only rudimentary knowledge of [Wiggins’s] history from a
narrow set of sources,” (2) counsel “uncovered no evidence in their investigation
to suggest that . . . further investigation would have been fruitless,” and (3) the
failure to investigate “resulted from inattention, not strategic judgment.” Id. at
521–27.
      The Supreme Court has also stated that, under a Strickland analysis, trial
counsel must not ignore “pertinent avenues of investigation,” Porter v.
McCollum, 558 U.S. 30, 40 (2009), or even a single, particularly promising
investigation lead, Rompilla, 545 U.S. at 383–84. In Porter, for example, the
Supreme Court held that counsel performed deficiently when he “did not even
take the first step of interviewing witnesses or requesting records” and “ignored
pertinent avenues for investigation of which he should have been aware.” 558
U.S. at 40. In Rompilla, the Supreme Court faulted defense counsel for failing
to look at a file to investigate a prior conviction that he knew the prosecutor
intended to use against his client. 545 U.S. at 383–84. The Court explained that
counsel did not “look at any part of that file, including the transcript, until

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warned by the prosecution a second time.” Id. at 384. Had counsel looked, he
would have discovered “a range of mitigation leads that no other source had
opened up.” Id. at 390.
      A careful comparison to Wiggins, Porter, and Rompilla suggests that the
state habeas court did not unreasonably apply Strickland’s deficiency prong by
concluding that Charles’s trial counsel performed an adequate mitigation
investigation.
                                        1.
      Unlike counsel in Wiggins, Charles’s trial counsel did not abandon his
mitigation investigation after a cursory review of “a narrow set of sources.” 539
U.S. at 524.     The record shows that trial counsel started to prepare a
punishment-phase defense soon after his appointment and reviewed Charles’s
school, Texas Youth Commission, and Texas Department of Criminal Justice
records.   Trial counsel spoke with Charles, his parents, and other family
members with the specific purpose of discovering mitigating evidence. In
addition, trial counsel hired experts to assist with the mitigation investigation.
An investigator interviewed witnesses, including Charles’s family members,
parents, teachers, and schoolmates. A psychologist, Dr. Jerome Brown,
interviewed Charles and his mother and stepfather, and reviewed Charles’s
school and medical records.
      Moreover, aside from the Gulf Pines records or the affidavit from Charles’s
stepfather, Leroy Phillips, Charles fails to identify the sources from which trial
counsel could have obtained additional mitigating evidence. See Trottie, 720
F.3d at 243 (“[A] defendant who alleges a failure to investigate on the part of his
counsel must allege with specificity what the investigation would have revealed
and how it would have altered the outcome of the trial.” (quoting Druery v.
Thaler, 647 F.3d 535, 541 (5th Cir.2011))). With regard to Phillips, the state
habeas record indicates that counsel knew the information that Phillips

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possessed but made a strategic decision not to call him as a witness due to the
harm that might result from cross-examination. Phillips gave Charles’s bloody
clothing from the crime to police, turned in Charles for prior crimes, suffered an
assault from Charles, and attempted to teach Charles right from wrong
throughout his life. To the extent Charles argues that Phillips should have
testified, “[c]laims that counsel failed to call witnesses are not favored on federal
habeas review because the presentation of witnesses is generally a matter of
trial strategy and speculation about what witnesses would have said on the
stand is too uncertain.” Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010).
                                         2.
      Whereas trial counsel in Wiggins had “no evidence” that further
investigation would have been fruitless, Charles’s trial counsel possessed some
evidence that the Gulf Pines records would not be helpful to Charles’s mitigation
argument. At the state habeas proceedings, trial counsel testified that Charles’s
parents said they admitted Charles to Gulf Pines because he was “acting out”
and that the visit “really didn’t have anything to do with mental illness.” A
review of Charles’s hospital records confirms that Charles’s family, particularly
in regard to his 1995 admission, wanted help dealing with Charles’s violent
behavior.
      Most notably, the report of Dr. Brown indicated that trial counsel would
have little success finding mitigating evidence using a psychological theory. Dr.
Brown’s report stated that
      Unfortunately, the information now available does not provide any
      evidence that might be considered mitigating in this examiner's
      opinion. Beyond a possible diagnosis of Attention Deficit Disorder,
      he does not reveal any evidence of mental illness or other types of
      mental disorder or mental defect that might be offered on his behalf.
      The possibility of mental retardation was investigated but this was
      contra-indicated by school records, the psychological test results,
      and the reports from his parents concerning his adaptive skills. . . .


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      There was nothing else offered in his history by the defendant or by
      his parents that would be of use in his defense, including the
      possibility of brain tissue trauma, childhood abuse, deprivation, or
      traumatic life events. Because of this, you were advised that any
      testimony I might offer on the defendant’s behalf would be minimal
      or unhelpful at best, and that cross[-]examination might prove
      damaging to the defendant.
      Hence, in retrospect, the Gulf Pines records contained information that
counsel may have used in presenting mitigating evidence for Charles, but that
fact was not altogether clear: previous attempts to diagnose Charles with mental
illness had failed and trial counsel had reason to believe the records would not
be helpful—or worse, harmful. See Strickland, 466 U.S. at 691 (“[W]hen a
defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s failure to pursue
those investigations may not later be challenged as unreasonable.”).
                                        3.
      Finally, unlike Wiggins, the failure of Charles’s trial counsel to discover
the Gulf Pines records did not result from pure inattention, and this is not a case
like Porter, where counsel wholly ignored multiple avenues of investigation. 558
U.S. at 40. In contrast, Charles’s claim centers on the Gulf Pines records, a
single mitigation lead.      Furthermore, although Rompilla supports the
proposition that even missing a single pertinent lead may satisfy Strickland,
that case dealt with a “readily available” file that the prosecution tipped-off to
defense counsel. Rompilla, 545 U.S. at 385. Here, by contrast, Charles’s trial
counsel was aware of the Gulf Pines records but, like the state, gave up looking
for the records because the hospital had shut down. Accordingly, for these
reasons, the state habeas court’s denial of Charles’s claim was not an
unreasonable application of Strickland’s deficiency prong.
                                        B.
      Even assuming arguendo that the state habeas court unreasonably applied

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                                  No. 12-70016

Strickland’s deficiency prong, we are not persuaded that the state habeas court
unreasonably applied Strickland’s prejudice prong, although it presents a closer
question.
      The prejudice inquiry under Strickland requires evaluating whether there
is 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).     Here, the state habeas court omitted the “reasonable
probability” modifier and concluded that “[Charles] fails to show that the results
of the proceeding would have been different if [the Gulf Pines Hospital records]
[had] been presented.” As a threshold matter, Charles argues that, because the
state court omitted the “reasonably probability” modifier, we should not apply
AEDPA deference to the state habeas court’s decision on the issue of prejudice.
      A state-court decision is contrary to clearly established federal law—and
therefore not entitled to deference under AEDPA—when it uses a
preponderance-of-the-evidence test to determine prejudice, rather than the less
onerous “reasonable probability” test promulgated by Strickland:
      If a state court were to reject a prisoner’s claim of ineffective
      assistance of counsel on the grounds that the prisoner had not
      established by a preponderance of the evidence that the result of his
      criminal proceeding would have been different, that decision would
      be “diametrically different,” “opposite in character or nature,” and
      “mutually opposed” to our clearly established precedent because we
      held in Strickland that the prisoner need only demonstrate a
      “reasonable probability that . . . the result of the proceeding would
      have been different.”
Williams, 529 U.S. at 405–06 (alteration in original) (citing Strickland, 466 U.S.
at 694). Therefore, because the state court omitted the “reasonable probability”
modifier in its decision, we must determine whether the court employed a
preponderance-of-the-evidence     standard—which      is    contrary   to   clearly
established federal law—or whether the court used a shorthand method to refer


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                                       No. 12-70016

to the correct reasonable probability standard.
       Although no Fifth Circuit or Supreme Court precedent controls that
question,5 the Seventh Circuit’s decision in Sussman v. Jenkins frames a similar
fact pattern. 636 F.3d 329 (2011). In Sussman, a state court omitted the
“reasonable probability” language from its Strickland prejudice determination.
Id. at 359. In concluding that the state court’s decision was nevertheless entitled
to deference under AEDPA, the Seventh Circuit reasoned that (1) the state-court
decision correctly cited another case that incorporated the correct ineffective
assistance standard under Strickland and (2) it was “clear from the [state]
court’s analysis that it did not believe that the [undiscovered evidence] had a
reasonable probability of altering the jury’s verdict.” Id. at 359–60.
       We find the Seventh Circuit’s analysis in Sussman persuasive and


       5
          In Higgins, the state post-conviction court omitted the “reasonable probability”
modifier in explaining Strickland’s prejudice standard. 720 F.3d at 261 n.15. There, we did
not address the issue because even under de novo review the defendant failed to demonstrate
prejudice. Id.
        The Supreme Court has dealt with similar fact patterns, albeit none quite like this
case. In Woodford v. Visciotti, for example, the Supreme Court concluded that a state court’s
use of the term “probable” in describing the petitioner’s burden under Strickland, as opposed
to the correct standard of a “reasonable probability,” did not render the decision contrary to
federal law where the state previously recited the correct Strickland standard. 537 U.S. 19,
23–24 (2002); see also Holland v. Jackson, 542 U.S. 649, 654–55 (2004) (citing Woodford).
        Although the facts of Sussman are most comparable to this case, other circuits have
addressed similar situations. See, e.g., Gray v. Branker, 529 F.3d 220, 234–35 (4th Cir. 2008)
(“The MAR court required certainty that the jury would have reached a different result at
sentencing. This standard is more onerous than either the preponderance of the evidence
standard rejected as too demanding by the Supreme Court in Strickland or the one actually
adopted there.”); Martin v. Grosshans, 424 F.3d 588, 592 (7th Cir. 2005) (holding that a state
court’s use of “but for defense counsel’s unprofessional errors, the result of the proceeding
would have been different” was contrary to federal law); Bledsoe v. Bruce, 569 F.3d 1223,
1232–33 (10th Cir. 2009) (stating that “despite its ‘may is not good enough’ language, the
Kansas Supreme Court applied the correct [Strickland] standard”); Parker v. Sec’y for Dep’t
of Corr., 331 F.3d 764, 786 (11th Cir. 2003) (“Despite the imprecise language used by the
Florida Supreme Court, we conclude the court understood and applied the correct prejudice
standard from Strickland. This deferential approach is consistent with our view that if a state
court denies a prisoner’s claim without any reasoning at all, it is still entitled to AEDPA
deference.”).

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                                 No. 12-70016

therefore apply its reasoning to this case. Here, similar to Sussman, the state
habeas court cited a number of Supreme Court cases applying the correct
Strickland prejudice standard, including Wiggins, 539 U.S. 510, Rompilla, 545
U.S. 374, and Williams, 529 U.S. 362. This indicates that the state habeas court
omitted the “reasonable probability” modifier not due to its incorrect
understanding of the prejudice standard, but as a shorthand method to refer to
the correct standard. See Visciotti, 537 U.S. 19, 24 (2002) (“[R]eadiness to
attribute error is inconsistent with the presumption that state courts know and
follow the law.”).
      Furthermore, the state habeas court made clear that it did not believe the
Gulf Pines records had a reasonable probability of altering the jury’s verdict.
Indeed, if anything, the state habeas court believed the Gulf Pines records would
have provided no value to Charles’s sentencing arguments:
      Trial counsel cannot be considered ineffective for not presenting
      [Charles’s] Gulf Pine[s] Hospital records whose slight mitigating
      value, if any, would have been lost amidst the harmful information
      contained in the records about [his] anger, hostile behavior, and
      oppositional defiance . . . .
Accordingly, we apply AEDPA deference to the state habeas court’s prejudice
conclusion.
      In reviewing whether the state habeas court unreasonably applied
Strickland’s prejudice prong, we must “consider all the relevant evidence that
the jury would have had before it if [trial counsel] had pursued the different
path.” Wong v. Belmontes, 558 U.S. 15, 20 (2009). In Kitchens v. Johnson, for
example, the defendant alleged that his trial counsel performed deficiently by
failing to present hospital records detailing not only the defendant’s history of
suicide attempts and depression, but also his history of drug and alcohol abuse.
190 F.3d 698, 703 (5th Cir. 1999). In concluding that the defendant suffered no
actual prejudice, we highlighted the “double-edged nature” of the unpresented


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                                  No. 12-70016

evidence: “[I]f counsel had introduced the hospital records, the jury may have
better understood [Kitchen’s] mental state, but would have seen a long history
of drug and alcohol abuse.” Id.
      Likewise here, if Charles’s trial counsel had discovered and presented the
Gulf Pines records, the jury would have received a better picture of Charles’s
mental history, but also would have seen, for example, instances where Charles
was violent towards peers, was charged with assault by threat, lost his temper,
and was suspended from school due to his hostile behavior. According to the
district court, although the Gulf Pines records showed Charles’s potential
mental-health problems, they also “portended of future societal danger”:
      The [Gulf Pines] records contain two diagnoses: oppositional defiant
      disorder and depression. Aside from ascribing a psychological label
      to his bad behavior, Charles does not explain how the jury would
      find mitigating components in his oppositional defiant disorder. The
      records do not identify what caused him to have such a
      confrontational attitude, but more-than-amply show how it caused
      him to lash out at others. The hospital reports of Charles’[s] defiant
      and aggressive personality may well have engulfed at trial any
      mitigating features of the depression diagnosis. Worse, as discussed
      below, the Gulf Pines Hospital records show that Charles’[s]
      aggression and violence were not episodic, but a repeated theme in
      his life.
Charles, 2011 WL 5040438, at *24.
      In response, Charles argues that the jury had already heard about
Charles’s violent tendencies and that, therefore, the additional indications of his
violence in the Gulf Pines records would not have hurt his sentencing
arguments. To substantiate this argument, Charles lists a number of instances
where the jury heard about Charles’s unruly and criminal behavior as an
adolescent, including where Charles was arrested for criminal trespass, hit his
uncle in the head and subsequently resisted arrest, failed to follow probation




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                                  No. 12-70016

supervision rules, and threatened and showed extreme disrespect for authority
and others.
       Charles is correct that the Gulf Pines records contain information
regarding Charles’s violent tendencies similar to that already presented to the
jury—that is, the Gulf Pines records merely confirm and provide more evidence
of the aggressive, disrespectful, and violent behavioral tendencies that the state
attempted to show the jury at sentencing. Therefore, assessing Strickland’s
prejudice inquiry boils down to an assessment of the degree to which the harmful
information in the Gulf Pines records would have harmed Charles’s case and the
degree to which the helpful information would have helped it.
       That is a difficult question. But the difficulty associated with answering
Strickland’s prejudice prong in this case is precisely why it is hard to portray the
state habeas court’s decision against Charles as unreasonable. Charles has not
shown that the state court’s ruling was “so lacking in justification that there was
an    error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”       Richter, 131 S. Ct. at 786–87.
Therefore, applying the deferential standard of review imposed by AEDPA, we
conclude that the state habeas court did not unreasonably apply Strickland’s
prejudice prong and that relief is not warranted under § 2254(d)(1).
                                        IV.
       To obtain relief under § 2254(d)(2), Charles must prove that the state
habeas court’s decision rested on “an unreasonable determination of the facts in
light of the evidence.” “Section 2254 also requires that determinations of fact
issued by state courts are ‘presumed to be correct,’ and that they not be
disturbed unless an applicant rebuts the presumption with clear and convincing
evidence.” Lewis v. Thaler, 701 F.3d 783, 791 (5th Cir. 2012), cert. denied, 133
S. Ct. 1739 (U.S. 2013) (quoting 28 U.S.C. § 2254(e)(1)). To satisfy this burden,
Charles makes several arguments, all of which either rely on an incorrect

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                                  No. 12-70016

understanding of the state habeas court’s findings or parse the record in a
manner inconsistent with the AEDPA’s deferential standard of review.
Accordingly, we will not grant relief on any of Charles’s claims under
§ 2254(d)(2).
                                          A.
      Charles’s first argument relates to trial counsel’s understanding of his
visits to Gulf Pines Hospital, prior to discovery of the records from those visits.
He argues that the state habeas court unreasonably determined that, at the time
of trial, trial counsel understood that Charles’s hospitalization at Gulf Pines was
unrelated to mental illness and lasted for two days when, after trial, Charles’s
trial counsel admitted knowing that Charles’s hospitalization was related to
depression and lasted for fifteen days.
      Contrary to what Charles implies in his brief, the state habeas court’s
found only that “the applicant’s family informed [trial] counsel that [Charles’s]
stay at Gulf Pines was a result of the problems he caused at home, and that the
applicant’s hospitalization had nothing to do with mental illness.” The finding
in question did not mention the length of Charles’s stay, and the state habeas
court’s finding did not relate to what trial counsel actually knew—only to what
Charles’s family told him.
      Moreover, Charles makes this argument in response to the district court’s
conclusion that trial counsel “had little reason to think that the Gulf Pines
Hospital records might benefit the defense” when Charles’s family had told trial
counsel that the visits related to Charles’s “acting out” and nothing more. At
issue, however, is whether the state habeas court’s decision rested on an
unreasonable determination of the facts, and Charles does not show, other than
a conclusory allegation, that the state habeas decision rested on whether trial
counsel believed that Charles’s stay at Gulf Pines related to mental illness.
                                          B.

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                                       No. 12-70016

       Charles’s second argument relates to trial counsel’s general knowledge of
the case. Specifically, Charles’s argues that the state habeas court unreasonably
determined that trial counsel was “familiar with the facts of the case” when trial
counsel failed to learn about various aspects of Charles’s background contained
in the Gulf Pines records.6
       Charles’s argument fails when the state habeas court’s finding is viewed
in context, which shows the efforts counsel undertook to understand and present
Charles’s case:
       The Court finds, based on the appellate record and the credible
       affidavit of trial counsel . . . , that counsel prepared and filed pre-
       trial motions, interviewed witnesses, talked to the applicant’s family
       about possible mitigating evidence, obtained discovery, reviewed the
       State’s file, employed an investigator, vigorously cross-examined the
       State’s witnesses, made appropriate trial objections, presented
       mitigation evidence at punishment . . . were familiar with the facts
       of the case and the applicable law, and talked to the applicant about
       the offense, potential witnesses, the pending trial, and his
       background and life.
In the context of these other findings, which Charles does not challenge, the
state habeas court’s determination that counsel knew the facts of the case does
not appear unreasonable. The fact that trial counsel did not know every detail
regarding Charles’s background—including the contents of the undiscovered
Gulf Pines records—does not mean that trial counsel was not “familiar with the
facts of the case” more generally.
                                             V.
       We conclude that the state habeas court’s decision was not contrary to, or
an unreasonable application of, clearly established federal law and that the state


       6
        Charles also asserts that the state habeas court unreasonably determined that trial
counsel decided, at sentencing, to focus on Charles’s future dangerousness after “thorough
investigation.” To the extent that Charles offers this assertion as a stand-alone argument, it
merely restates his Strickland ineffective-assistance-of-counsel claim and his view that trial
counsel should have discovered the Gulf Pines records.

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                                No. 12-70016

habeas court’s decision was not based on an unreasonable determination of the
facts in light of the evidence. Accordingly, we AFFIRM.




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