     Case: 10-50006       Document: 00511660201          Page: 1     Date Filed: 11/09/2011




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

                                                                               FILED
                                                                            November 9, 2011
                                          No. 10-50006
                                                                              Lyle W. Cayce
                                                                                   Clerk
LOUIS DOUGLAS HALLEY, IV,

                        Petitioner - Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                        Respondent - Appellee


                      Appeal from the United States District Court
                           for the Western District of Texas
                                USDC No. 7:06-CV-150


Before JONES, Chief Judge, HAYNES, Circuit Judge, and CRONE, District
Judge.*
MARCIA A. CRONE, District Judge:**
        Following his plea of guilty and subsequent punishment hearing,
Petitioner-Appellant Louis Douglas Halley, IV (“Halley”), was sentenced to life
in prison for murder. He filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254(d), alleging that numerous errors by the state trial court
tainted his conviction. After the district court denied his petition, this court

        *
            District Judge of the Eastern District of Texas, sitting by designation.
       **
           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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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granted a certificate of appealability (“COA”) on whether:       (1) the State’s
introduction of a psychiatrist’s testimony during its case-in-chief violated the
Fifth Amendment to the United States Constitution; (2) Halley’s trial attorneys
rendered ineffective assistance by failing to object to the psychiatrist’s
testimony; and (3) the district court erred in denying Halley’s motion for an
evidentiary hearing on these issues. For the following reasons, we AFFIRM.
                             I. BACKGROUND
      Halley pleaded guilty in 2001 to the murder of Johnny Okrasinski
(“Okrasinski”). Halley, who was facing five years to life imprisonment, elected
to have his punishment assessed by a jury. The evidence before the jury showed
that, in the Fall of 1998, Halley became enraged after his coworker, Krista Nagel
(“Nagel”), told him she had been drugged and raped by Okrasinski. Nagel
subsequently denied making this accusation. Halley’s belief that Nagel had been
assaulted, however, was bolstered by the statement of another woman, Tiffany
Judkins (“Judkins”), who purportedly told him that she, too, had been raped by
Okrasinski. Like Nagel, Judkins disputed that she had made such a claim.
Thereafter, Halley frequently entreated Nagel to report Okrasinski’s behavior
to authorities, but Nagel refused, insisting that she had not been raped.
Frustrated by Nagel’s inaction, Halley told several people that he might harm
Okrasinski.
      In January 2000, Halley waited outside Okrasinski’s workplace and
opened fire with a pistol as he approached his vehicle. Okrasinski attempted to
take cover behind his van, but Halley climbed atop the vehicle and continued
firing. After the victim fell to the ground, Halley shot him two more times.
When apprehended later by authorities, Halley claimed that he had killed
Okrasinski to prevent him from victimizing other women. Police found the
murder weapon in Halley’s vehicle and a signed letter of confession on his
person. The jury also viewed numerous letters Halley had sent to his friends
and family explaining his intention to kill Okrasinski and then commit suicide.

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      During the State’s case-in-chief, the prosecutor called Dr. Ravi Medi
(“Medi”), a psychiatrist appointed on the motion of the defense to examine Halley
regarding his sanity at the time of the offense and his competency to stand trial.
Medi characterized Halley as “uncooperative” and “belligerent” and testified that
he was unremorseful for Okrasinski’s death. Medi also noted that he had
diagnosed Halley with bipolar disorder NOS (not otherwise specified) and “mixed
personality disorder with narcissistic and antisocial traits.” Medi further opined
that mixed personality disorder is “very difficult” to treat.
      On cross-examination, defense counsel asked the doctor what treatment
Halley would receive in prison, implicitly suggesting that psychiatric treatment
would be more “beneficial for [Halley] or for society in the long run” than
imprisonment. On redirect, the following exchange occurred:
      Prosecutor: Well, is it typical that someone with the type of
                  condition this Defendant exhibits that they do not want
                  to cooperate in their treatment and they do not want to
                  take the medication?

      Medi:         It’s very common with his condition.

      Prosecutor: In fact, it’s traditionally cyclic, they will have this
                  condition, they’ll seek help temporarily, they’ll get some
                  medication, but . . . they’ll stop taking medicine, and
                  then they’ll act out again, and then they’ll wind up back
                  in jail or a hospital . . . and we just see them over and
                  over again coming through the system until we’ve got
                  something like our victim in this case laying [sic] dead
                  in an alley about four blocks from here, correct?

      Medi:         Unfortunately, that’s true.

      Prosecutor: And you have no medical reassurance that there won’t
                  be another victim laying [sic] out in that alley in five
                  months if he doesn’t go to prison, do you?

      Medi:         I don’t.




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On re-cross, defense counsel asked Medi whether he could state “with any
medical certainty” that Halley would commit another violent act.                       Medi
answered that it was “possible,” but conceded that he did not “know about the
future.” Similarly, Halley’s attorney asked Medi if “it’s best to have Mr. Halley
incarcerated for the rest of his life,” to which Medi replied that it was not his
place to decide. The defense did not object to Medi’s testimony and, despite the
prosecutor’s request for a sixty-year prison term, the jury assessed a sentence
of life imprisonment.
       Halley’s conviction and sentence were affirmed on appeal and, in 2003, the
Texas Court of Criminal Appeals refused his petition for discretionary review.
Thereafter, Halley filed a state habeas application, which was denied by the
Texas Court of Criminal Appeals.            On December 6, 2006, Halley filed an
amended 28 U.S.C. § 2254 petition1 asserting myriad grounds for relief. The
parties consented to proceed before a magistrate judge, who dismissed the
petition with prejudice. This court granted Halley a COA with respect to his
Fifth Amendment and ineffective assistance of counsel claims, as well as “the
denial of an evidentiary hearing on these two claims.”
                                   II. DISCUSSION
                               A. Standard of Review
       The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs
this court’s review of Halley’s claims. White v. Thaler, 610 F.3d 890, 898 (5th
Cir. 2010). Under the AEDPA, a federal court may not grant habeas relief
unless the state court’s adjudication of the claim resulted in a decision that (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)
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)(1)-(2).


       1
        Halley’s original federal habeas petition was dismissed without prejudice for failure
to exhaust state court remedies in 2004.

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       A state court’s decision is “contrary to” clearly established federal law if
“it relies on legal rules that directly conflict with prior holdings of the Supreme
Court or if it reaches a different conclusion than the Supreme Court on
materially indistinguishable facts.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.
2004).     A decision constitutes an “unreasonable application” of clearly
established federal law if it is “objectively unreasonable.” Neal v. Puckett, 286
F.3d 230, 236 (5th Cir. 2002) (en banc). The state court’s factual determinations
are presumed correct, and it is the petitioner’s burden to rebut this presumption
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Pape v. Thaler, 645
F.3d 281, 287 (5th Cir. 2011).
       “A state court’s determination that a claim lacks merit precludes federal
habeas review so long as fairminded jurists could disagree on the correctness of
the state court’s decision.” Harrington v. Richter,            U.S.      ,    , 131 S. Ct.
770, 786 (2011). In other words, under § 2254(d), a state prisoner seeking
federal habeas relief “must show that the state court’s ruling on the claim . . .
was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Id.
                                B. Fifth Amendment
       Halley first argues that the state habeas court’s denial of his Fifth
Amendment claim was contrary to or involved an unreasonable application of
clearly established federal law under § 2254(d)(1).2 Specifically, Halley asserts
that the admission of Dr. Medi’s testimony, which was the result of an unwarned
examination, runs afoul of the Supreme Court’s holding in Estelle v. Smith, 451




       2
          Respondent argues that the court need not reach the merits of Halley’s Fifth
Amendment claim because the state appellate court denied the claim on an independent and
adequate state procedural ground. Because the last reasoned state court decision rejected
Halley’s claim on the merits, however, the procedural default doctrine is inapplicable here.
Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991).

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U.S. 454 (1981). The state habeas court denied Halley’s Fifth Amendment claim
on the merits, distinguishing the instant case from Estelle.
      In Estelle, the trial court sua sponte ordered an in-custody psychiatric
examination to determine the competency of a capital murder defendant, Ernest
Benjamin Smith (“Smith”). 451 U.S. at 456-57. Smith was not advised of his
Miranda3 rights prior to the examination. Id. at 460. During the trial’s penalty
phase, the psychiatrist testified, over defense counsel’s objection, that Smith was
a severe sociopath likely to continue to commit criminal acts. Id. at 459-60. The
jury then answered special questions, including one addressing Smith’s future
dangerousness, in the affirmative, rendering the death penalty mandatory. Id.
at 457-60. The Supreme Court held that the admission of the psychiatrist’s
testimony under these “distinct circumstances,” where Smith did not receive
Miranda warnings and “had neither initiate[d] the psychiatric evaluation nor
attempt[ed] to introduce any psychiatric evidence,” violated Smith’s Fifth
Amendment privilege against self-incrimination. Id. at 456-69.
      Plainly, Halley’s case differs from Estelle in that it does not involve a
capital offense in which the jury must make a special finding regarding future
dangerousness. See Estelle, 451 U.S. at 466 (limiting its holding to situations
where “future dangerousness [is] a critical issue” and “one on which the State
ha[s] the burden of proof beyond a reasonable doubt”); see also Penry v. Johnson
(Penry II), 532 U.S. 782, 794 (2001). Instead, Halley’s jury was simply tasked
with deciding the “appropriate punishment” on the basis of the entirety of the
evidence presented. Therefore, the state court reasonably distinguished Estelle
from the facts presented in the case at bar.
      Moreover, two subsequent Supreme Court cases further inform our
analysis. In Buchanan v. Kentucky, a capital defendant attempted to establish
the defense of extreme emotional disturbance by questioning his sole witness,


      3
          Miranda v. Arizona, 384 U.S. 436 (1966).



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a social worker, about psychological reports detailing his mental condition. 483
U.S. 402, 408-10 (1987). On cross-examination, the prosecutor elicited testimony
about the damaging report of a psychiatrist appointed by the court on the joint
motion of the parties. Id. at 410-11 & n.11. Finding no Fifth Amendment
violation, the Court reasoned that Estelle “logically leads to another proposition:
if a defendant requests such an evaluation or presents psychiatric evidence,
then, at the very least, the prosecution may rebut this presentation with
evidence from the reports of the examination that the defendant requested.”
Thus, because “petitioner’s counsel joined in a motion” for the examination and
based the defense strategy on the defendant’s mental state, there was “no Fifth
Amendment privilege against the introduction of this . . . testimony by the
prosecution.” Id. at 422-23.
      Similarly, in Penry II, the Court held that the introduction of a
psychiatrist’s report during the prosecutor’s cross-examination of a defense
witness did not warrant federal habeas relief. 532 U.S. 782, 793-96 (2001). The
Penry II Court distinguished Estelle by noting, inter alia, that the defendant (1)
requested a mental examination and (2) was not yet facing the death penalty at
the time of his examination and, thus, future dangerousness was not specifically
at issue. Id. at 794.
      In light of Buchanan and Penry II, this court cannot conclude that the
Texas state court’s denial of Halley’s Fifth Amendment claim was contrary to,
or an unreasonable application of, “clearly established federal law, as established
by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Importantly, because Halley
was not charged with capital murder and he moved for a psychiatric evaluation,




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Estelle is not controlling.4 For these reasons, Halley’s case is distinguishable
from Estelle, which was expressly limited to its facts. 451 U.S. at 466.
       Furthermore, any error that may have occurred is harmless. It is well
established that habeas petitioners are not entitled to relief based on a
constitutional error unless the error had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Oliver v. Quarterman, 541 F.3d 329,
341 (5th Cir. 2008). This court has previously found equivocal psychiatric
testimony, like Medi’s, to be harmless. See Woods v. Johnson, 75 F.3d 1017,
1027 (5th Cir. 1996) (holding inadmissible psychiatric testimony harmless where
witness was unable to say with any degree of certainty how defendant would
behave in the future). Moreover, there was ample evidence before the jury to
justify Halley’s lengthy sentence. Testimony established that Halley obsessed
over Okrasinski’s treatment of women, extensively plotted his murder, waited
outside his workplace, and shot him multiple times as he attempted to seek
cover. See Dale v. Quarterman, 553 F.3d 876, 881 (5th Cir. 2008). In addition,
jurors, who viewed letters sent by Halley to his family and friends rationalizing
Okrasinski’s murder and heard Halley’s testimony, may have viewed him as
unremorseful without regard to Medi’s testimony. Accordingly, even if the
admission of Medi’s testimony constituted a Fifth Amendment violation, Halley
would not be entitled to habeas corpus relief. Oliver, 541 F.3d at 341.
                      C. Ineffective Assistance of Counsel
       Halley next asserts that his trial counsel was ineffective for failing to
object to Medi’s testimony.5 Because a § 2254 claim of ineffective assistance of

       4
           This court has previously held that the necessity for Miranda warnings is not
obviated where the defense requests a mental evaluation on the issue of competency. Battie
v. Estelle, 655 F.2d 692, 702 (5th Cir. 1981); see also Vanderbilt v. Collins, 994 F.2d 189, 196-
97 (5th Cir. 1993). Our inquiry here, however, is concerned only with clearly established
federal law “as determined by the Supreme Court” and not with our own precedent. 28 U.S.C.
§ 2254(d)(1); accord Renico v. Lett,     U.S. , , 130 S. Ct. 1855, 1866 (2010).
       5
         Halley also argued below that Medi’s testimony was inadmissible under Article 38.22
of the Texas Rules of Criminal Procedure. This assertion, however, has been waived, as Halley
did not address it in his briefing. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

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counsel is a mixed question of law and fact, this court reviews the lower court’s
denial of such a claim de novo. See Smith v. Quarterman, 515 F.3d 392, 403 (5th
Cir. 2008). To prevail on his claim of ineffective assistance, Halley must show
that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish deficient performance, Halley must show that his counsel’s actions “fell
below an objective standard of reasonableness.” Id. at 688. In evaluating an
attorney’s performance, there is a “strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance.” Id. at 689. Under
Strickland’s prejudice prong, Halley additionally must demonstrate 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. “A reasonable
probability requires a substantial, not just a conceivable, likelihood of a different
result.”   Pape, 645 F.3d at 288.       Conclusory assertions of prejudice are
insufficient. Green v. Johnson, 160 F.3d 1029, 1041 (5th Cir. 1998).
      In a habeas case where a defendant alleges ineffective assistance of
counsel, the ‘pivotal question is whether the state court’s application of the
Strickland standard was unreasonable. This is different from asking whether
defense counsel’s performance fell below Strickland’s standard.’” Pape, 645 F.3d
at 288 (citing Harrington, 131 S. Ct. at 785). In conducting habeas review, the
state court is granted a “deference and latitude that are not in operation when
the case involves review under the Strickland standard itself.” Harrington, 131
S. Ct. at 785.
      In the instant case, the state habeas trial court denied Halley’s ineffective
assistance claim in light of its rejection of his substantive argument that Medi’s
testimony violated his Fifth Amendment rights. This is not an unreasonable
application of Strickland, as the failure to “raise meritless objections is not
ineffective lawyering.” Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994).
Moreover, this court has “consistently found counsel’s decisions regarding


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examination and presentation of witnesses and testimony to fall within [the]
category of trial strategy which enjoys a strong presumption of effectiveness.”
Pape, 645 F.3d at 291. Here, counsel allowed Medi to testify, without objection,
as to Halley’s unstable mental condition. Then, counsel relied on that testimony
to question Medi regarding whether Halley would receive sufficient treatment
in prison as opposed to a psychiatric hospital. Counsel also recalled Medi’s
equivocal testimony in closing arguments to suggest to the jury that Halley
would not again pose a threat. Thus, the record evidence supports a finding that
counsel’s decisions fell within the “wide range of trial tactics that constitute
reasonable assistance.” Id.; see also Kitchens v. Johnson, 190 F.3d 698, 703 (5th
Cir. 1999) (recognizing the great deference afforded to counsel where evidence
of a “double-edged nature” is involved).
       In any event, Halley has failed to establish prejudice. With respect to a
state sentencing, the question is whether, “absent counsel’s errors, there is a
reasonable probability that the defendant’s sentence would have been
significantly less harsh.” Dale, 553 F.3d at 880. Halley does not make such a
showing. Specifically, aside from Medi’s testimony, compelling evidence was
presented to warrant Halley’s life sentence. As noted above, the jury considered
evidence of Halley’s obsessive nature, extensive premeditation, and callous
attitude toward his victim. See White v. Johnson, 153 F.3d 197, 203 (5th Cir.
1998) (characterizing “statements by the defendant indicating a lack of remorse”
as “nonpsychiatric evidence of future dangerousness”).6 In short, while the jury
assessed a sentence in excess of the sixty years sought by the prosecutor,
sufficient evidence was presented at sentencing, exclusive of Medi’s testimony,
to demonstrate aggravating circumstances supporting a life sentence. Moreover,
Halley provided only conclusory allegations of prejudice in his briefing. Mallard
v. Cain, 515 F.3d 379, 383 (5th Cir. 2008) (denying prisoner’s habeas petition


       6
       For further discussion of the details of Halley’s offense, see Halley v. State, No. 08-01-
00088-CR, 2002 WL 1584198, at *1 (Tex. App.—El Paso July 18, 2002).

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that included mere conclusory assertions of prejudice).           Because Halley’s
ineffective assistance claim lacks merit, the state court did not unreasonably
apply Strickland.
                          D. Evidentiary Hearing
      Finally, Halley argues that the district court improperly denied an
evidentiary hearing on his Fifth Amendment and ineffective assistance of
counsel claims. This claim is foreclosed, however, by the Supreme Court’s
holding in Cullen v. Pinholster,      U.S.    ,      , 131 S. Ct. 1388, 1398 (2011),
which limits habeas review of claims adjudicated on the merits in state court to
the state court record. Accordingly, we affirm the district court’s denial of an
evidentiary hearing.
                              III. CONCLUSION
      Consistent with the foregoing analysis, the district court’s denial of habeas
corpus relief is AFFIRMED.




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