                                                         United States Court of Appeals
                                                                  Fifth Circuit

                 IN THE UNITED STATES COURT OF APPEALS
                                                               F I L E D
                                                              February 15, 2005
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-41495



BETTY CARLENE JOHNSON EASLEY

                  Petitioner - Appellant

     v.

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, Marshall
                             No. 00-CV-198


Before KING, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

     Betty Carlene Johnson Easley, a state prisoner convicted of

murdering her husband, appeals the district court’s denial of her

petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254.    After denying Easley’s habeas petition in all respects,

the district court granted her application for certificate of

appealability.    For the following reasons, we AFFIRM the district


     *
          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that this opinion should not be published and is not precedent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.

                                   1
court’s denial of Easley’s petition.

               I. FACTUAL AND PROCEDURAL BACKGROUND

     On December 9, 1996, Betty Easley (“Easley”) killed her

husband, Jimmy Wayne Easley, by shooting him several times with a

single-shot shotgun.   On the night of the murder, Easley made a

number of inculpatory statements to the police, including telling

them “I meant to kill him.”    She also claimed that her husband

had been trying to kill her.

     At trial, Easley testified that the night before the murder,

her husband drugged her and tried to force her to have oral sex.

When she refused, her husband allegedly shoved more pills down

her throat, saying that he would leave her alone if she took

them.   When Easley awoke, she allegedly heard her husband yelling

at her from outside her bedroom, locked her bedroom door, and

tried to use the bedroom telephone, but the line was dead.     The

next thing she allegedly remembers was her husband knocking on

the door.   She then recalls waking up in the hospital under

arrest.   At the hospital, doctors found a toxic level of

butalbital, a barbituate, in her stomach.    While Easley claimed

that her husband had forced her to take the butalbital, medical

evidence presented at trial suggested that she herself took it

shortly before heading to jail (the arresting officers recalled

letting her take a pill for her nerves before transporting her).

     At trial, Easley’s lawyer, Christina Wedding, told the jury

that throughout her adult life Easley had made poor judgments

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regarding her significant others.       Easley then took the stand and

testified about her past abusive relationships.       She testified

that she married Jimmy Wayne Easley on three separate occasions

and that he tore up her furniture, beat her, pulled a gun on her,

threatened to burn down their house, was arrested for assaulting

her, and burned down his mother’s house.       Easley also testified

about her marriages to four other men.       Her marriage to one of

these men, Michael Chatham, ended when both Easley and Chatham

were life-flighted to the hospital after they stabbed each other

following a violent night of drinking.

     After Easley testified, Wedding called Stephanie Carter,

Easley’s daughter, to the stand.       Carter attempted to testify

about the abuse suffered by Easley in the past but was stopped

when the prosecution objected to this testimony, arguing that

only testimony related to Jimmy Wayne Easley’s abuse was relevant

to the murder.   Wedding responded that the testimony was

necessary to show Easley’s state of mind on the night of the

killing.   The trial court disagreed, noting that Easley

previously had testified that she did not remember her state of

mind when she killed her husband.       Wedding also stated that the

prosecution would call Michael Chatham as a witness, and she said

that if Easley’s witnesses could not testify about past abuse,

Chatham should not be allowed to testify about past abuse either.

The trial court again disagreed, finding that Easley had opened

the door to Chatham’s impeachment and rebuttal testimony through

                                   3
her own testimony.

     After Carter testified about Jimmy Wayne Easley’s

abusiveness, the prosecution called Michael Chatham as a rebuttal

witness.   Chatham testified about his marriage to Easley, saying

that Easley was the aggressor on the night of the stabbing.    He

denied stabbing Easley, testifying instead that he “was told”

that Easley inflicted a knife wound on herself that night.

Chatham also stated that Easley told him that she had beaten a

prior boyfriend, Bill Gordon, senseless with a baseball bat after

a fight.

     The jury convicted Easley of murder.   During the penalty

phase, Easley was the only defense witness called to testify.

She expressed remorse, saying that she would not have shot Wayne

“in my right mind” and that she “did not take the pills myself.”

After hearing her testimony, the jury sentenced her to life in

prison.

     Easley appealed her conviction and sentence, which the state

appellate court affirmed.   Easley v. State, 978 S.W.2d 244 (Tex.

App.--Texarkana 1998).   The Texas Court of Criminal Appeals

refused her petition for discretionary review.   With the

assistance of new counsel, Easley then filed a state habeas

application, asserting that Wedding rendered ineffective

assistance of counsel at trial.   The trial court recommended that

Easley’s request be denied, and the Texas Court of Criminal

Appeals denied her application.   Again with the assistance of

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counsel, Easley filed a 28 U.S.C. § 2254 petition, raising the

same arguments that she raised in her state court habeas

application.   A federal magistrate judge reviewed Easley’s § 2254

petition and conducted an evidentiary hearing as to whether

Easley’s trial counsel inappropriately failed to investigate and

discover that Easley suffered from post-traumatic stress disorder

(“PTSD”).   The magistrate judge recommended that Easley’s

petition for writ of habeas corpus be denied.   After conducting a

de novo review, the district court denied her petition.

     Easley filed a timely notice of appeal and an application

for a certificate of appealability (COA) with the district court.

The district court granted the COA on all issues presented in

Easley’s § 2254 petition.   According to the district court, the

issues set forth in Easley’s petition are at least debatable in

light of the Tenth Circuit’s decision in Paine v. Massie, 339

F.3d 1194 (10th Cir. 2003) (holding that trial counsel’s failure

to offer expert evidence at trial that the petitioner suffered

from battered woman syndrome may have constituted ineffective

assistance of counsel).



                      II. STANDARD OF REVIEW

     Because Easley’s federal habeas corpus petition was filed in

September 2000, it is subject to review under the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”).   28 U.S.C.


                                 5
§ 2254; Lindh v. Murphy, 521 U.S. 320, 336 (1997).      Under AEDPA,

a federal court may only grant a habeas petition to an individual

convicted in state court if the state-court judgment:

     (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.

28 U.S.C. § 2254(d).   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 set of materially indistinguishable

facts.”   Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000)

(internal quotation marks omitted) (alterations in original).      A

decision is an unreasonable application of federal law if “the

state court identifies the correct governing legal principle

. . . but unreasonably applies that principle to the facts of the

prisoner’s case.”   Id.   In a habeas corpus appeal, this court

reviews the district court's findings of fact for clear error and

its conclusions of law de novo.       Busby v. Dretke, 359 F.3d 708,

713 (5th Cir. 2004).

     Claims of ineffective assistance of counsel are evaluated

under the two-prong test set forth in Strickland v. Washington,

466 U.S. 668 (1984).   Under this test, the petitioner can only


                                  6
prevail by showing: (1) that her counsel’s performance was

deficient and fell below an objective standard of reasonableness;

and (2) that her counsel’s deficient performance prejudiced her

defense.   Id. at 687-94.

     When analyzing an attorney’s performance, this court is

“highly deferential” and applies a “strong presumption” that

counsel rendered an adequate performance and that the conduct was

part of a reasoned strategy.     Id. at 689.   As for the prejudice

prong of the Strickland test, “[t]he defendant must show that

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

unprofessional errors, the result of the proceeding would have

been different.”   Id. at 694.   If the petitioner fails to

establish either the performance or prejudice prong of the

Strickland test, her ineffective assistance of counsel claim

fails.   Id. at 687-94.

                            III. ANALYSIS

     Easley argues on appeal that she was denied effective

assistance of counsel because her trial counsel failed to: (1)

discover and present evidence of her PTSD; (2) provide

documentary proof that Easley was no-billed for assaulting

Chatham; (3) investigate and present certain evidence regarding

her PTSD, diminished capacity, and past abuse during the penalty

phase; (4) object to Chatham’s hearsay testimony; (5) ask for a

limiting instruction regarding Chatham’s testimony; and (6)



                                  7
object to certain of the prosecutor’s closing remarks.

     A.   Failure To Discover Easley’s PTSD

     Easley’s primary argument on appeal is that Wedding failed

to provide her with effective assistance of counsel because she

did not hire an expert to discover and present evidence of the

fact that Easley suffered from PTSD.   Easley contends that such

evidence would have shown the jury that she thought she had to

kill her husband and would have helped the jury to understand her

history of substance abuse and bad relationships.   Easley also

contends that Wedding knew before trial that she would insist on

testifying about her prior abusive relationships, and the only

way that Wedding could have redeemed this testimony was by having

an expert witness place it into context.

     In response, Wedding submitted an affidavit in the state

habeas proceeding stating that she had obtained a court order for

a mental health examination of Easley and that the court’s

neutral expert, Dr. William Crommack, found that Easley did not

suffer from PTSD.   Additionally, Wedding reviewed Easley’s

medical records and applications for Social Security benefits,

none of which indicated that she suffered from PTSD.   Based on

this evidence, the state habeas court denied Easley’s petition

for writ of habeas corpus, finding that Wedding had thoroughly

investigated Easley’s case and had no information that “would

alert [her] to the possibility that [Easley] had [PTSD] or that



                                 8
would otherwise justify expert testimony at trial” regarding

PTSD.   The district court denied Easley’s habeas petition for

similar reasons, finding that Wedding sufficiently discussed

trial options with Easley, sufficiently investigated Easley’s

state of mind, and justifiably concluded that the available

medical evidence indicated that Easley was not suffering from

PTSD.

     On appeal, Easley relies primarily on the Tenth Circuit’s

holding in Paine, 339 F.3d at 1197, in which the court found that

plaintiff’s counsel may have rendered ineffective assistance by

failing to use expert testimony to support her claim of self-

defense based on battered woman syndrome (“BWS”).   In reaching

this conclusion, the Tenth Circuit analyzed the applicable

Oklahoma law on self-defense and BWS, noting that in Bechtel v.

State, 840 P.2d 1, 8, 10 (Okla. Crim. App. 1992), Oklahoma’s

highest criminal court held that the failure to have an expert

witness testify about an abused woman’s BWS at trial is

reversible error in Oklahoma, since such testimony is necessary

to establish a self-defense claim in Oklahoma based on BWS.

Paine, 339 F.3d at 1201-02 (holding that “counsel failed to do

something that the [Oklahoma court in Bechtel] said was necessary

to mount an effective self-defense claim given the jury’s likely

misconceptions about BWS”).

     Paine is readily distinguishable from the present case.

First, Paine is not controlling precedent in this circuit.

                                 9
Second, Paine turns on the fact that under Oklahoma state law,

expert testimony is necessary to support a BWS defense.    See

Bechtel, 840 P.2d at 8, 10.   No such requirement exists under

Texas state law for a PTSD defense, making Paine’s holding

inapplicable in Texas.   Third, Paine does not address trial

counsel’s duty to use an expert to investigate possible defenses

prior to trial, but only discusses the use of an expert once a

BWS defense already has been raised at trial.   In the present

case, no PTSD defense was ever raised at trial and, accordingly,

Paine is not directly on point.

     While Paine is distinguishable from the present case,

several courts have addressed factual scenarios similar to the

case at hand, concluding that counsel’s failure to discover that

a defendant suffered from PTSD was not ineffective assistance of

counsel under Strickland when counsel, like Wedding, had

investigated the defendant’s history and had no reason to suspect

the existence of PTSD.   See, e.g., Campbell v. Coyle, 260 F.3d

531 (6th Cir. 2001) (holding that counsel’s failure to

investigate and discover petitioner’s PTSD was not ineffective

assistance of counsel when a clinical psychologist failed to

diagnose the petitioner as suffering from PTSD and when counsel

investigated the petitioner’s history); Taylor v. Mitchell, 296

F. Supp. 2d 784 (N.D. Ohio 2003) (holding that counsel’s failure

to investigate and discover petitioner’s PTSD was not ineffective

assistance of counsel after a forensic psychologist failed to

                                  10
diagnose him as suffering from PTSD).   Additionally, in those

cases in which Texas appellate courts have reversed convictions

because trial counsel failed to request or were not provided with

a mental health expert, evidence already existed indicating that

the defendant’s mental health would be a significant factor at

trial.   See, e.g., Woods v. State, 59 S.W.3d 833, 837-38 (Tex.

App.--Texarkana 2001), rev’d on other grounds, 108 S.W.3d 314

(Tex. Crim. App. 2003) (trial counsel was aware that the

defendant had a history of commitment to mental health hospitals

since age thirteen and there was evidence that he heard voices

and suffered hallucinations); In re R.D.B., 20 S.W.3d 255, 256-

57, 261 (Tex. App.--Texarkana 2000) (the defendant had a frontal

lobe brain injury, was taking medication for it, and a

psychiatric evaluation indicated that the injury may have

contributed to his behavior).   Likewise, in all cases where this

circuit has held that a trial counsel’s performance was

ineffective for failing to investigate properly an insanity

defense, trial counsel knew that their clients had serious mental

disorders.   See, e.g., Bouchillon v. Collins, 907 F.2d 589, 596-

97 (5th Cir. 1990) (counsel’s failure to investigate a possible

insanity defense was unreasonable because the defendant told him

that he had been institutionalized several times and was taking

medication for mental problems); Profitt v. Waldron, 831 F.2d

1245, 1247-49 (5th Cir. 1987) (counsel’s failure to investigate

an insanity defense was unreasonable because counsel knew that

                                11
the defendant previously had been adjudicated insane and the only

viable defense was insanity).   Conversely, as both the state

habeas court and the district court have noted in the present

case, Wedding had no evidence of Easley’s PTSD.    To the contrary,

all information available to Wedding (e.g., Dr. Crommack’s

evaluation of Easley and Easley’s prior medical records)

suggested that Easley did not suffer from PTSD.

     Additionally, in Black v. Collins, 962 F.2d 394, 401 (5th

Cir. 1992), this court found that the petitioner’s trial counsel,

who knew of the petitioner’s PTSD, was not ineffective for

failing to investigate and present evidence of his PTSD, since

counsel did not believe that his crime fit with the

characteristics of PTSD and made a strategic choice not to pursue

a PTSD trial strategy.   If the trial counsel in Black was not

ineffective in choosing not to use documented proof of his

client’s PTSD, Wedding cannot be faulted for failing to pursue a

PTSD defense, especially in light of the fact that Dr. Crommack’s

evaluation and Wedding’s reasonable investigation indicated that

Easley did not suffer from PTSD.     Accordingly, the district court

correctly found that the state habeas court did not err when it

concluded that Wedding did not render ineffective assistance of

counsel by failing to investigate further a PTSD defense.

   B.     Failure To Offer Documentary Proof That Easley Was No-
          Billed For Stabbing Chatham

     Easley next claims that Wedding provided ineffective

                                12
assistance of counsel by failing to introduce at trial evidence

that a grand jury in Galveston chose to no-bill her for stabbing

Michael Chatham.   The state habeas court and the district court

found that Wedding did not render ineffective assistance of

counsel by failing to introduce this evidence because Easley

testified at trial that she was no-billed.   Because Easley’s

testimony on this issue was uncontested, and because additional

evidence of this fact would have been cumulative, the district

court did not err when it concluded that the state habeas court

correctly found that Wedding did not render ineffective

assistance of counsel by failing to introduce such evidence.     See

TEX. R. EVID. 403 (stating that Texas law does not permit the

“needless presentation of cumulative evidence”).

   C.     Failure To Introduce Mitigating Evidence During The
          Penalty Phase

     Easley additionally claims that she was denied effective

assistance of counsel because Wedding failed to investigate and

present evidence that could have been used at the penalty phase

to mitigate her sentence.   Specifically, Easley claims that

Wedding failed to: (1) present evidence of her PTSD during the

penalty phase; (2) interview all of her daughters and several of

her friends and have them testify during the penalty phase about

Wedding’s violent past; and (3) present evidence at the penalty

phase that she killed her husband while in a dissociative state

caused by her PTSD, the drugs in her system, and her husband’s

                                13
actions.

     Because, as we have already held, Wedding did not provide

ineffective assistance of counsel by failing to discover Easley’s

PTSD, the district court correctly concluded that the state court

reasonably found that her failure to address PTSD at the penalty

phase did not constitute ineffective assistance of counsel.    With

respect to Easley’s other claims, this court has held that “a

tactical decision not to pursue and present potential mitigating

evidence on the grounds that it is double-edged in nature is

objectively reasonable, and therefore does not amount to

deficient performance.”   Rector v. Johnson, 120 F.3d 551, 564

(5th Cir. 1997).   Similarly, the Supreme Court stated in

Strickland that when a defendant has provided her lawyer with a

reason to think that pursuing a certain investigation would be

fruitless or harmful, “counsel’s failure to pursue those

investigations may not later be challenged as unreasonable.”

Strickland, 466 U.S. at 691.   Under this standard, the district

court did not err when it concluded that the state habeas court

correctly found that Wedding did not act unreasonably when she

chose to minimize testimony regarding Easley’s violent past and

her mental state on the night of the murder.1

     1
          In her brief, Easley relies on Anderson v. Johnson, 338
F.3d 382, 391-92 (5th Cir. 2003), for the proposition that
Wedding should have interviewed all of her potential witnesses.
Anderson, however, only pertains to the failure to interview
eyewitnesses to a crime--it does not address the failure to
interview character witnesses. See id. at 391.

                                14
     D.   Easley’s Remaining Arguments

     In Easley’s three remaining arguments, she claims that

Wedding improperly failed to: (1) object to Michael Chatham’s

hearsay statement regarding her self-inflicted knife wounds; (2)

ask for a limiting instruction regarding Chatham’s testimony; and

(3) object to remarks made by the prosecutor during his closing

argument about physical violence in Easley’s past relationships.

Easley claims that when these errors are examined cumulatively,

there is a reasonable probability that she would have been

acquitted but for them.

      In this circuit, the cumulative error doctrine only applies

when the errors themselves involve matters of constitutional

dimension and “so infected the entire trial that the resulting

conviction violates due process.”      Derden v. McNeel, 978 F.2d

1453, 1454 (5th Cir. 1996) (en banc).     When this court evaluates

whether the cumulative error doctrine applies to a set of facts,

it “review[s] the record as a whole to determine whether the

errors more likely than not caused a suspect verdict.”      Spence v.

Johnson, 80 F.3d 989, 1001 (5th Cir. 1996) (internal quotation

marks omitted).   In this circuit, “[m]eritless claims or claims

that are not prejudicial cannot be cumulated, regardless of the

total number raised.”     Westley v. Johnson, 83 F.3d 714, 726 (5th

Cir. 1996) (quoting Derden, 978 F.2d at 1461).     In the present

case, the errors that Wedding may have committed in no way cast


                                  15
doubt on the jury’s verdict.    The evidence presented at trial was

simply overwhelming.   For example, Easley herself admitted more

than once to shooting her husband.    The gun that killed him was

found not far from where she was found.   Easley admitted that her

husband had not threatened to kill her on the night of the

murder.   She further claimed to not recall her state of mind when

she killed him.   Moreover, aspects of Easley’s account of the

night in question were inconsistent with the available evidence

(e.g., she claimed her husband tried to break into her room and

that he forced her to take pills, but no evidence of an attempted

break in was found and the medical evidence suggested that Easley

voluntarily took the pills after killing her husband).    This

court has held on several occasions that overwhelming evidence of

a defendant’s guilt supports the conclusion that she suffered no

prejudice as a result of her counsel’s performance and mistakes.

See, e.g., United States v. Royal, 972 F.2d 643, 651 (5th Cir.

1992); United States v. Oakley, 827 F.2d 1023, 1026 (5th Cir.

1987) (per curiam).    Because of the overwhelming evidence against

Easley, no reason exists for thinking that the jury would have

acquitted her had Wedding objected to Chatham’s hearsay

testimony, asked for a limiting instruction, and objected to the

prosecutor’s closing remarks.   Accordingly, the district court

did not err when it concluded that the state habeas court

correctly found that Easley’s remaining ineffective assistance of

counsel claims fail because any error regarding them was

                                 16
harmless.

                         IV. CONCLUSION

     For the foregoing reasons, this court AFFIRMS the judgment

of the district court.




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