     Case: 12-70018      Document: 00513107322         Page: 1    Date Filed: 07/07/2015




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

                                      No. 12-70018
                                                                                     Fifth Circuit

                                                                                   FILED
                                                                                July 7, 2015

ROBERT MITCHELL JENNINGS,                                                     Lyle W. Cayce
                                                                                   Clerk
              Petitioner - Appellee

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:09-CV-219


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before STEWART, Chief Judge, and SOUTHWICK and HAYNES, Circuit
Judges.
PER CURIAM:*
       Robert Mitchell Jennings was sentenced to death for capital murder.
Jennings sought federal habeas relief, alleging that he received ineffective
assistance of counsel during the punishment phase of his trial. He raised two



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 12-70018
claims under Wiggins v. Smith, 539 U.S. 510 (2003), arguing that counsel was
ineffective for failing to present evidence of his disadvantaged background and
not investigating or presenting evidence of his mental impairment. He also
raised a claim under Smith v. Spisak, 558 U.S. 139 (2010), contending that
counsel was ineffective for expressing resignation to a death sentence during
closing argument by stating that he could not “quarrel with” a death sentence.
      The district court granted Jennings relief on his two Wiggins claims, but
denied relief on his Spisak claim.       The state appealed the district court’s
decision on Jennings’s Wiggins claims. Jennings responded by arguing that
the district court correctly ruled on those two claims, but also argued again
that he was entitled to relief on his Spisak theory.
      We reversed the district court’s grant of habeas relief on Jennings’s
Wiggins claims. We held that his Spisak claim was not properly presented
because Jennings had not filed a cross-appeal or obtained a Certificate of
Appealability (“COA”). See Jennings v. Stephens, 537 F. App’x 326, 337–39
(5th Cir. 2013).     After granting a writ of certiorari, the Supreme Court
concluded that Jennings was not required to file a cross-appeal or seek a COA
to pursue his Spisak theory because consideration of that claim “would neither
have enlarged his rights nor diminished the State’s rights under the District
Court’s judgment.” Jennings v. Stephens, 135 S. Ct. 793, 802 (2015). The Court
remanded for consideration of Jennings’s Spisak theory. Id. We AFFIRM the
district court’s denial of relief on this claim.


                                   DISCUSSION
      The only issue for us to address on remand is Jennings’s Spisak claim,
namely, that counsel was ineffective during closing argument by stating that
he could not “quarrel with” a death sentence.


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                                 No. 12-70018
      Our review of Jennings’s claim is governed by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). Clark v. Thaler, 673 F.3d 410, 415–
16 (5th Cir. 2012). Under AEDPA, a federal court may not grant habeas relief
after an adjudication on the merits in a state court proceeding unless the state
court’s decision: (1) “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.” 28 U.S.C. § 2254(d). “Claims of ineffective assistance of counsel
involve mixed questions of law and fact and are governed by [Section]
2254(d)(1).” Clark, 673 F.3d at 416 (citation and quotation marks omitted).
The district court’s legal conclusions are reviewed de novo and its factual
findings are reviewed for clear error. Id. at 417.
      To succeed on his ineffective assistance claim, Jennings was required to
demonstrate that: (1) his attorney’s performance fell below an objective
standard of reasonableness, and (2) there is a reasonable probability that such
performance prejudiced him. Druery v. Thaler, 647 F.3d 535, 538 (5th Cir.
2011) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Where, as here,
a state court “does not state the grounds on which it denied an ineffective
assistance claim, federal habeas courts will consider it to have adjudicated both
grounds.” Loden v. McCarty, 778 F.3d 484, 495 (5th Cir. 2015).
      When reviewing a Strickland claim under Section 2254(d), this court
applies a “doubly deferential” standard of review. See Knowles v. Mirzayance,
556 U.S. 111, 123 (2009). First, we “must apply a strong presumption that
counsel’s representation was within the wide range of reasonable professional
assistance.”   Harrington v. Richter, 562 U.S. 86, 104 (2011) (citation and
internal quotation marks omitted). Second, this court applies that strong
presumption through the highly deferential lens of Section 2254(d) “since the
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question is whether the state court’s application of the Strickland standard
was unreasonable.” Druery, 647 F.3d at 539 (citation and internal quotation
marks omitted).       “A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as fairminded jurists could disagree on
the correctness of the state court’s decision.” Richter, 562 U.S. at 101 (citation
and internal quotation marks omitted).
       There is a right to effective assistance by counsel during closing
arguments. Yarborough v. Gentry, 540 U.S. 1, 5 (2003). “Nonetheless, counsel
has wide latitude in deciding how best to represent a client, and deference to
counsel’s tactical decisions in his closing presentation is particularly important
because of the broad range of legitimate defense strategy at that stage.” Id. at
5–6. “Judicial review of a defense attorney’s summation is therefore highly
deferential . . . .” Id. at 6.
       The state habeas court concluded that counsel’s statement during closing
argument that he could not “quarrel with” a death sentence constituted a
“plausible trial strategy.”      The Texas Court of Criminal Appeals denied
Jennings’s application without addressing this ineffective assistance claim.
The state habeas court’s decision is therefore entitled to AEDPA deference as
the last decision from a state court in which reasoning was articulated. See
Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir. 2012).
       The federal district court concluded that, “[i]n light of the extremely
weak mitigation case, the state habeas court’s conclusion that this was a
plausible strategy was not unreasonable.” The court explained, “[i]t is clear
from the record that counsel was trying to identify with the jurors, and to
convince them that he was a reasonable man who shared their interest in a
safe community.”
       Jennings argues that the district court erred in holding that the state
habeas court’s conclusion was reasonable. He contends that, “[r]ather than
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                                   No. 12-70018
making a forceful argument in support of a life sentence, as effective advocacy
requires, [counsel] expressed resignation and acceptance of a death sentence.”
      “The pivotal question [for us to decide] is whether the state court’s
application of the Strickland standard was unreasonable.” Richter, 562 U.S.
at 101. “This is different from asking whether defense counsel’s performance
fell below Strickland’s standard. . . . 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.
      In considering counsel’s statement, we examine the closing argument in
its entirety. Carter v. Johnson, 131 F.3d 452, 466 (5th Cir. 1997).        Counsel
began by stating, “So, let me ask you for him. If you can, if you can see some
way—maybe you can’t, folks. I told you before, I can’t quarrel with that . . . .”
He immediately followed with, “Shoot, I’m a citizen here just like all of you. I
live here, I work here, I’m raising my children here just like you. But if you
can, I ask you to find that mitigation, to answer one of those issues ‘No’ . . . .”
      We cannot say that the state habeas court’s application of Strickland was
unreasonable. The state habeas court implicitly held that Jennings’s claim
failed both prongs of the Strickland test. See Loden, 778 F.3d at 495. We need
not examine both prongs because the state court’s implicit holding that
Jennings failed to satisfy the deficiency prong does not constitute an
unreasonable application of Strickland. Once “a court rules trial counsel’s
performance was not deficient, prejudice need not be addressed.” Pondexter v.
Quarterman, 537 F.3d 511, 520 (5th Cir. 2008). “To establish credibility with
the jury, counsel may make a tactical decision to acknowledge the defendant’s
culpability and may even concede that the jury would be justified in imposing
the death penalty.”     Riley v. Cockrell, 339 F.3d 308, 317 (5th Cir. 2003)
(citations and internal quotation marks omitted). The state court’s application


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of Strickland is thus consistent with this court’s precedent. This is especially
so given the lack of mitigating evidence.
      Given the highly deferential standard of review, we agree with the
district court that Jennings has failed 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 for fairminded
disagreement” and federal habeas relief is therefore precluded. Richter, 562
U.S. at 103.
      The district court’s denial of relief on Jennings’s claim of ineffective
assistance of counsel during closing argument is AFFIRMED.




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