Simmons v. Epps

Filing 511138760

Simmons v. Epps

Doc. 511138760

Case: 08-70048

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Date Filed: 06/10/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
June 10, 2010 N o . 08-70048 Lyle W. Cayce Clerk

G A R Y CARL SIMMONS, JR., Petitioner­Appellant v. C H R I S T O P H E R B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT O F CORRECTIONS, R e s p o n d e n t­ A p p e lle e

A p p e a l from the United States District Court for the Southern District of Mississippi U S D C No. 1:04-CV-00496

B e fo r e DAVIS, GARZA, and PRADO, Circuit Judges. P E R CURIAM:* G a r y Simmons was charged in Mississippi state court with the murder of J e f f r e y Wolfe. The jury found Simmons guilty, and the state court judge

s e n te n c e d him to death. Simmons petitioned unsuccessfully for post-conviction r e lie f in state court. He filed a habeas petition in federal district court. Then, h e requested the issuance of a certificate of appealability ("COA") on three g r o u n d s : (1) whether the trial court erroneously allowed the prosecution to

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-70048 s u b m it to the jury an aggravating circumstance without sufficient evidentiary s u p p o r t in violation of the Sixth, Eighth, and Fourteenth Amendments; (2) w h e t h e r Simmons was denied effective assistance of counsel during the penalty p h a s e of his trial, in violation of the Sixth and Fourteenth Amendments; and (3) w h e t h e r the trial court erred during the sentencing phase of his trial by e x c lu d in g relevant mitigating evidence in violation of the Sixth, Eighth, and F o u r t e e n t h Amendments. The district court granted a COA on the first ground, b u t not on the second or third ground. Simmons has now filed a motion to e x p a n d the COA to include the second and third grounds. W e deny Simmons's motion as to his second ground. We grant Simmons's m o t io n as to his third ground. I. FACTS T h e details of the murder giving rise to this case are memorialized in o p in io n s by the Supreme Court of Mississippi, Simmons v. State, 805 So. 2d 452 (2 0 0 1 ) (Simmons I) and Simmons v. State, 869 So. 2d 995 (2004) (Simmons II), a n d the federal district court, Simmons v. Epps, No. 1:04-CV-00496, 2008 U.S. D is t . LEXIS 75398 (S.D. Miss. Sept. 26, 2008). Here, we briefly describe the fa c t s only as they apply directly to this opinion. Shortly after Wolfe's murder but before Simmons's arrest, Simmons r e c o r d e d a videotape in which he told his ex-wife Lori how to dispose of his p r o p e r t y . He also made comments which strongly implied that he committed a c r im e and felt remorse: I guess it's a real mess, isn't it? It wasn't supposed to go like t h a t . . . . Things got pressing in. I was in a bind three or four d iffe r e n t ways. To my way of thinking, I didn't have much of a c h o ic e . I mean, I'd already taken his money. There's no excuses. .... It's hard sitting here doing this, knowing under what conditions y o u 'll probably be watching it. I'm so dreadfully sorry. ....

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No. 08-70048 I didn't think about it until after it was done. And then it couldn't b e undone. There was nothing in the world I could do to make it u n d o n e . And I would have. Oh, God, I would have. You never r e a liz e how close you are to the edge until you actually step over it. .... I don't know how it happened, I really don't. And after it had h a p p e n e d , I would have gave anything to take it back, even my life. Simmons sent the videotape to Lori, who turned it over to Simmons's attorneys. T h e day after the murder, Simmons's friend Dennis Guess came home to fin d Simmons asleep on his couch. Simmons apparently told Guess about the m u r d e r , and Simmons and Guess discussed Simmons's options, which included r u n n in g , turning himself in, and committing suicide. They decided that he s h o u ld turn himself in. Simmons called the police, and a deputy came and p ic k e d him up. II. PROCEDURAL HISTORY S im m o n s's friend Timothy Milano was tried separately for Wolfe's murder. In both Simmons's and Milano's trials, prosecutors argued that they worked t o g e t h e r to kill Wolfe. Milano was found guilty and sentenced to life in prison. During Simmons's trial, Guess testified that Simmons expressed remorse fo r the crime and that Simmons said he had hurt enough people and did not w a n t to hurt anyone else. Simmons tried to introduce the videotape to show that h e felt remorse for the murder, but the state court excluded it as self-serving h e a r s a y . Simmons did not testify. In closing, the State said, "And at that point a n d [sic] time the only remorse that [Simmons] displayed, the only remorse that M r . Guess testified to, was the fact that he, Mr. Simmons, had made a terrible m is t a k e and the girl had gotten away." The State also argued that Simmons b e c a m e "divorced" from his conscience at the time he and Lori divorced, and that " w e are talking about the circumstances of this crime, him, this person who now h a s no conscience."

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No. 08-70048 T h e jury convicted Simmons of rape, kidnapping, and capital murder with t h e underlying felony of robbery. At sentencing, Simmons did not testify. Simmons tried again to introduce the videotape, and again the court excluded it. Also at sentencing, Simmons presented six witnesses to testify on his b e h a l f : Jewell Simmons, his grandmother; Milton DuPuis, his half-brother; D a n a Vanzante, a family friend; Lynette Holmes, his ex-wife's friend; Belinda S im m o n s West, his half-sister; and Lori. These witnesses testified that

S im m o n s was a hard-working family man who held down two or three jobs, a lw a y s paid the bills, and attended church regularly. They noted that Simmons d o t e d on his and Lori's two daughters, provided them with a stable home e n v i r o n m e n t , made sure they had plenty of food and toys, loved playing with t h e m and brushing their hair, and enjoyed barbecues and other social events. The witnesses uniformly expressed shock that Simmons would commit a brutal m u r d e r , and implored the court to spare Simmons's life. The witnesses who knew Simmons as a child explained that he had a d iffic u lt upbringing. Jewell Simmons testified that two of Simmons's uncles had b e e n murdered, although she did not discuss the impact these deaths had on S im m o n s or whether Simmons was close with his uncles. DuPuis stated that his fa t h e r (Simmons's step-father) beat the children regularly, and that as the o ld e s t , Simmons endured the brunt of his rage. DuPuis recalled that his father o n c e shot at Simmons when Simmons tried to defend Simmons and DuPuis's m o t h e r . DuPuis also credited Simmons with helping him to find God, although DuPuis noted that Simmons had become less religious since his divorce from L o r i. Lori said that she still loved Simmons, but she acknowledged that she d iv o r c e d Simmons after her daughter from a previous relationship accused him o f misconduct and a court ruled that Simmons and the girl could not live under t h e same roof. 4

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No. 08-70048 T h e judge sentenced Simmons to death. Simmons filed a motion for postc o n v ic t io n relief with the Supreme Court of Mississippi, based on numerous c la im s including the three he brought in federal court. To support his claim for in e ffe c t i v e assistance, Simmons presented two affidavits signed by Tomika H a r r is , an investigator with the State of Mississippi who interviewed witnesses in Simmons's case after his conviction. In one affidavit, Harris stated that she in t e r v ie w e d Jewell and Belinda in Jewell's home. During the interview, Harris n o tic e d numerous pictures of Simmons on the wall, and she concluded (either b e c a u s e Jewell told her or through her own deduction) that each picture meant a lot to Jewell and that Jewell left them up so people would know she was t h in k in g of Simmons. Harris's affidavit also reported that Jewell and Belinda d e s c r ib e d Simmons as a family-oriented man who loved his daughters, and s t a t e d that they loved Simmons, that the verdict upset them, that Milano was t h e shooter, and that the verdict was at least partially due to lies that Milano t o ld the police. Gary Carl Simmons, Sr. ("Butch"), Simmons's father, lived with Jewell. Although Butch was present at the time of the interview and seemed disturbed b y the situation, he would not talk with Harris. Because she lived with Butch, J e w e ll did not want to sign an affidavit. Harris gleaned that Mildred, Simmons's mother, did not attend the trial b e c a u s e she was embarrassed and worried what people would think of her. Harris learned that Mildred and Butch divorced when Simmons was a child, and M ild r e d moved to Florida with Simmons. Jewell and Belinda told Harris that M ild r e d had a gambling problem and would often play bingo and gamble away t h e money she was supposed to use to buy food and pay the bills, would leave the c h ild r e n at home when she went to the bingo parlor, and once asked Jewell for h e lp paying her light bill after losing money at bingo. Harris also learned that

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No. 08-70048 M ild r e d remarried when Simmons was three and that Simmons's step-father w a s very mean to him. In the second affidavit, Harris stated that she called Lori to set up an inp e r s o n interview. Lori refused, explaining that she was bitter because Simmons le ft her to raise the children on her own. After their brief conversation, Harris c o n c lu d e d that Lori had information which was valuable to Simmons's defense, a n d which only Lori could supply. Harris did not explain what led her to this c o n c lu s io n . The Supreme Court of Mississippi rejected all of Simmons's claims. As for h is ineffective assistance claim, the court observed that most of the information in Harris's affidavits was presented at trial. Simmons II, 869 So. 2d at 1003. Viewing the affidavits as a whole, the court concluded that "Simmons has not s u b m it t e d sufficient evidence of a [constitutionally deficient] breach of the duty o f counsel to investigate and present mitigation evidence." Id. T h e court also rejected Simmons's claim that the state trial court violated h is due process rights when it excluded the videotape during the sentencing p h a s e . The court explained, "A declaration made by a defendant in his own favor . . . is not admissible for the defense . . . because there is nothing to guarantee it s trustworthiness." Simmons I, 805 So. 2d at 489 (quotation and emphasis o m it t e d ). The court reasoned that if such evidence were admissible, "the door w o u ld be thrown open to obvious abuse: an accused could create evidence for h im s e lf by making statements in his favor for subsequent use at his trial to show h is innocence." Id. (quotation and emphasis omitted). Three justices dissented. While agreeing that the trial court correctly e x c lu d e d the videotape during the guilt phase, the dissenting justices believed t h a t the trial court erred by excluding the videotape during the sentencing p h a s e . Id. at 509 (Diaz, J., concurring in part and dissenting in part). The d is s e n t in g justices stated that "[a]fter reviewing the tape, some of [Simmons's] 6

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No. 08-70048 s t a t e m e n t s can be interpreted as remorseful and thus mitigating in the eyes of t h e jury. Certainly, they appear to rebut the prosecution's claim that [Simmons] s h o w e d no remorse whatsoever." Id. at 510. The dissenting justices concluded t h a t they "would find that it was reversible error for the trial court to exclude t h is videotape as mitigating evidence during the sentencing phase of the trial a n d would, therefore, vacate Simmons' death sentence and remand the matter t o the trial court for a new sentencing hearing." Id. Simmons filed a habeas petition in district court. To support his

in e ffe c t iv e assistance claim, Simmons included several exhibits that he had not p r e s e n t e d to the state court. These exhibits included: (1) an affidavit from S im m o n s 's trial counsel Michael Cunningham, who stated that he would testify t o the following: that neither he nor his co-counsel moved the state court for fu n d s to employ an investigator; that they did not seek any mitigation specialist, p s y c h o lo g is t , or other mental health professional to analyze Simmons and in v e s t ig a t e possible mitigation theories; that they did not review any of S im m o n s 's school, military, medical/psychological, or pretrial incarceration r e c o r d s in any effort to investigate personal history details that might support a mitigation case; that they did not investigate any violent crimes committed a g a in s t Simmons's family members, such as the murders of Simmons's two u n c le s ; and that they did not investigate the details of Simmons's personal c h ild h o o d violence, such as the violence Simmons suffered at the hands of his s t e p -fa t h e r ; (2) an affidavit from Andre de Guy, a death penalty expert who o u tlin e d all of the areas an attorney "must" research when representing a d e fe n d a n t in a capital case; (3) an itemized statement of the hours worked by S im m o n s 's attorneys; (4) a newspaper article in which Simmons's pastor stated t h a t Simmons desperately needed help before the murder, that Simmons had r e a c h e d out to the pastor, that the pastor felt badly that he had not been more s e n s itiv e to Simmons's needs, and that the pastor had never detected any 7

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No. 08-70048 a n im osity between Simmons and African American members of the congregation d e s p it e an allegation that Simmons often tried to persuade teenagers to attack a n d kill African Americans; (5) an excerpt from a textbook on capital p u n is h m e n t , which emphasized that capital defense attorneys must research m it ig a t io n subjects exhaustively; and (6) an affidavit from Gary Mooers, a m it ig a t io n expert who opined that two of the areas which counsel failed to in v e s t ig a t e sufficiently--violent crimes against close relatives and personal c h ild h o o d violence--might lead to significant mitigation evidence if properly in v e s t ig a t e d . The district court found that Simmons's failure to present this new e v id e n c e of ineffective assistance to the Mississippi Supreme Court likely barred it s introduction. In the alternative, the district court found that Simmons failed t o demonstrate either deficient representation or prejudice, thus failing both p r o n g s of the test for ineffective assistance of counsel described in Strickland v. W a s h i n g t o n , 466 U.S. 668 (1984). Accordingly, the district court denied

S im m o n s 's request for a COA on his second ground. Regarding Simmons's first ground that the trial court erroneously allowed t h e prosecution to submit to the jury an aggravating circumstance without s u ffic ie n t evidentiary support, the district court granted a COA because it found t h a t reasonable jurists could debate the issue. Regarding Simmons's third g r o u n d that the trial court erred by excluding relevant mitigating evidence, the d is t r ic t court denied Simmons's COA request because it found that reasonable ju r is t s could not debate the issue. Simmons filed his motion to expand the COA. III. STANDARD OF REVIEW U n d e r the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a p e t it io n e r can appeal a district court's dismissal of a habeas petition only if the d is t r ic t or appellate court issues a COA. 28 U.S.C. § 2253(c); see also Miller-El 8

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No. 08-70048 v . Cockrell, 537 U.S. 322, 335­36 (2003). Because the district court denied S im m o n s 's request for a COA as to two of his claims, Simmons must seek a COA fr o m this Court to obtain further review of those two claims. See 28 U.S.C. § 2253(c); see also Coleman v. Quarterman, 456 F.3d 537, 541 (5th Cir. 2006). We will issue a COA if Simmons can make "a substantial showing of the d e n ia l of a constitutional right" by demonstrating that "reasonable jurists would fin d the district court's assessment of the constitutional claims debatable or w r o n g ." Slack v. McDaniel, 529 U.S. 473, 484 (2000). At this stage, our inquiry " is a threshold inquiry only, and does not require full consideration of the factual a n d legal bases of [Simmons's] claim." Neville v. Dretke, 423 F.3d 474, 482 (5th C ir . 2005). Because Simmons was sentenced to death, "we must resolve any d o u b t s as to whether a COA should issue in his favor." Martinez v. Dretke, 404 F .3 d 878, 884 (5th Cir. 2005). In determining whether reasonable jurists would debate the district c o u r t's assessment of Simmons's claims, we keep in mind that the district court's d e c is io n must be made pursuant to AEDPA's deferential standards. Tennard v . Dretke, 542 U.S. 274, 282 (2004); Leal v. Dretke, 428 F.3d 543, 548 (5th Cir. 2 0 0 5 ). AEDPA permits a federal district court to grant relief only on two bases. First, the petitioner is entitled to relief if the state court decision was "contrary t o , or involved an unreasonable application of, clearly established Federal law, a s determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d); L e a l, 428 F.3d at 548. A decision is contrary to federal law if it is "opposite to that reached by [t h e Supreme] Court on a question of law" or if it resolves a case differently from t h e way the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412­13 (2000). A decision unreasonably

a p p lie s federal law when it "identifies the correct governing legal rule from [S u p r e m e Court] cases but unreasonably applies it to the facts of the particular 9

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No. 08-70048 s t a t e prisoner's case." Id. at 407. A state court decision also unreasonably a p p lie s federal law if it "either unreasonably extends a legal principle from [S u p r e m e Court] precedent to a new context where it should not apply or u n r e a s o n a b ly refuses to extend that principle to a new context where it should a p p ly ." Id. S e c o n d , the petitioner is entitled to relief when the state court decision w a s "based on an unreasonable determination of the facts in light of the evidence p r e s e n t e d in the State court proceeding." 28 U.S.C. § 2254(d); Leal, 428 F.3d at 548. "The state court's findings of fact are entitled to a presumption of

c o r r e c t n e s s and the petitioner may overcome that presumption only by clear and c o n v in c in g evidence." Leal, 428 F.3d at 548 (citing 28 U.S.C. § 2254(e)(1)). I V . ANALYSIS A. W h e t h e r Simmons's Counsel was Constitutionally Ineffective u n d e r Strickland I n Strickland, the Supreme Court set forth a two-prong test for evaluating c la im s of ineffective assistance of counsel. Under this test, a defendant must s h o w (1) that his counsel's performance was deficient, and (2) that this deficient p e r fo r m a n c e prejudiced the defendant. 466 U.S. at 687. Here, reasonable jurists c o u ld not debate whether the Supreme Court of Mississippi reasonably applied t h e Strickland test when it determined that the state trial court did not violate S im m o n s 's constitutional right to effective assistance of counsel. Accordingly, w e find that the district court correctly denied Simmons's request for a COA on h is ineffective assistance claim. 1. E x h a u s tio n

T h e State argues that Simmons failed to exhaust his claim for ineffective a s s is t a n c e of counsel because his new evidence renders this claim "substantially d i f f e r e n t " than his state-court claim. We do not agree. Section 2254(b)(1) r e q u ir e s federal habeas petitioners to exhaust state court remedies before 10

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No. 08-70048 p r o c e e d in g in federal court. To satisfy this exhaustion requirement, "a habeas p e t it io n e r must have fairly presented the substance of his claim to the state c o u r ts ." Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997). The exhaustion r e q u ir e m e n t is not satisfied if a petitioner "presents material additional e v id e n t ia r y support to the federal court that was not presented to the state c o u r t." Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996) (emphasis added). For evidence to be material, it must "`place[] the claims in a significantly d iffe r e n t legal posture.'" Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003) (q u o tin g Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997)). Dismissal is not r e q u i r e d if the evidence places the petitioner's claims in a "comparatively s t r o n g e r evidentiary posture," id. at 388, "but does not fundamentally alter[] the c la im presented to the state courts." Id. (quoting Caballero v. Keane, 42 F.3d 7 3 8 , 741 (2d Cir. 1994)). The new evidence primarily serves to reinforce topics that Simmons p r e s e n t e d to the state court--that he had a difficult and painful childhood, that m e m b e r s of his family had been murdered, that he was generally a kind and lo v in g (if troubled) man, and that his attorneys failed to investigate these topics a d e q u a t e ly . Although some of the evidence gives additional details, it does not fu n d a m e n t a lly alter the claim presented to the state court. Accordingly,

S im m o n s sufficiently exhausted his ineffective assistance claim in state court a n d may present this new evidence in federal court. 2. D e fic ie n t Performance

T o satisfy Strickland's first prong, Simmons must show that his counsel c o m m it t e d "errors so serious that counsel was not functioning as the `counsel' g u a r a n t e e d the defendant by the Sixth Amendment." Strickland, 466 U.S. at 6 8 7 . Counsel's performance is considered deficient if it "falls below an objective s t a n d a r d of reasonableness" as measured by professional norms. Id. at 688. In a n a ly z in g counsel's performance, we make every effort to "eliminate the 11

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No. 08-70048 d is t o r t in g effects of hindsight," id. at 689, and we do not assume that counsel's p e r fo r m a n c e is deficient "merely because we disagree with trial counsel's s t r a t e g y ." Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999). At the same t im e , "in the context of a capital sentencing proceeding, defense counsel has the o b lig a t io n to conduct a `reasonably substantial, independent investigation' into p o t e n t ia l mitigating circumstances." Neal v. Puckett, 239 F.3d 683, 688 (5th Cir. 2 0 0 1 ) (quoting Baldwin v. Maggio, 704 F.2d 1325, 1332­33 (5th Cir. 1983)). S im m o n s argues that Cunningham's affidavit shows that Cunningham a n d his co-counsel completely failed to investigate Simmons's childhood, and t h a t their performance at sentencing was deficient. Although Cunningham's a ffid a v it acknowledges certain shortcomings, it is not the wholesale mea culpa t h a t Simmons describes. Cunningham's affidavit admits that counsel failed to in v e s t ig a t e certain records, the facts or circumstances of the murders of S im m o n s 's uncles, and the details of the violence committed by Simmons's stepfa t h e r . This is very different from a complete failure to investigate. In fact, c o u n s e l presented six mitigation witnesses. At least three of them--Jewell, B e lin d a , and Dupuis--had intimate knowledge of Simmons's childhood and s p o k e directly to the privations he suffered as a youth, specifically referencing t h e deaths of Simmons's uncles and the violence of his step-father, including the fa c t that his step-father once shot at him for trying to defend his mother. The relevant inquiry is not whether counsel performed any

in v e s t ig a t io n -- it is whether "the known evidence would lead a reasonable a t t o r n e y to investigate further." Wiggins v. Smith, 539 U.S. 510, 527 (2003). In W ig g in s , Wiggins argued that his trial counsel had failed to investigate s u ffic ie n t ly his dysfunctional upbringing. Id. at 516. To support his claim, W ig g in s presented evidence of his horrendous childhood: [Wiggins's] mother, a chronic alcoholic, frequently left Wiggins and h is siblings home alone for days, forcing them to beg for food and to 12

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No. 08-70048 e a t paint chips and garbage. Mrs. Wiggins' abusive behavior in c lu d e d beating the children for breaking into the kitchen, which s h e often kept locked. She had sex with men while her children s le p t in the same bed and, on one occasion, forced [Wiggins's] hand a g a in s t a hot stove burner--an incident that led to [Wiggins's] h o s p it a liz a t io n . At the age of six, the State placed Wiggins in foster c a r e . [Wiggins's] first and second foster mothers abused him p h y s ic a lly , and . . . the father in his second foster home repeatedly m o le s t e d and raped him. At age 16, [Wiggins] ran away from his fo s t e r home and began living on the streets. He returned in t e r m it t e n t ly to additional foster homes, including one in which the fo s t e r mother's sons allegedly gang-raped him on more than one o c c a s io n . After leaving the foster care system, Wiggins entered a J o b Corps program and was allegedly sexually abused by his s u p e r v is o r . I d . at 516­17 (citations omitted). Wiggins's attorney knew at least some of these fa c t s , but did not investigate to uncover them fully and did not present them as m it ig a t in g evidence at sentencing. Id. at 533­34. The Court found that the d e c is io n not to investigate fully was objectively unreasonable; therefore, the a t t o r n e y 's performance was deficient. Id. L ik e w is e , in Neal we found that Neal's attorneys provided deficient r e p r e s e n t a t io n . Neal's attorneys failed to investigate sufficiently and present e v id e n c e about Neal's truly horrendous experiences as a child and young adult in a facility for mentally handicapped children and later in a maximum-security m e n ta l institution, which included physical and sexual abuse and multiple a lle g e d gang-rapes, one of which included as many as thirty to forty attackers. Neal, 239 F.3d at 689­90. We found that Neal's attorneys failed to contact N e a l's sister, who had actually contacted them and would have testified on N e a l's behalf; probably did not sufficiently develop the testimony of Neal's m o t h e r ; and failed to prepare their psychological expert adequately, not even t e llin g her what crimes Neal was charged with or any facts about his personal h is t o r y . Id. at 690­91. We found the failure of Neal's attorneys even more

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No. 08-70048 t r o u b lin g because "most of the mitigating evidence was readily available and w o u l d have cost no more than several long distance telephone calls or postage s t a m p s ." Id. at 691. Simmons points to Jackson v. Calderon, a Ninth Circuit capital case that a ls o dealt with a claim for ineffective assistance of counsel at the sentencing p h a s e . In that case, the court found the representation provided by Jackson's a t t o r n e y was deficient after the attorney stated that he "never expected J a c k s o n 's trial to reach the penalty phase, and his preparation reflected that v ie w ," and that "[t]he total investigation for purposes of the penalty phase took le s s than two hours some weeks before the trial began." 211 F.3d 1148, 1161­62 (9 t h Cir. 2000). The court found that Jackson's attorney failed to investigate and p r e s e n t evidence that Jackson was "addict[ed] to PCP and the meaning and c o n s e q u e n c e s of such addiction," that Jackson "was grossly intoxicated" on PCP a t the time of the murder, and that Jackson was so intoxicated that he "could r e m e m b e r little of the incident" and "was unable to think consciously at the time o f the crime." Id. at 1162­63. If Jackson's attorney had investigated and presented this evidence, "the ju r y would have been presented with a different medical picture of Jackson's s t a t e of consciousness than the one they received, which was no picture at all." Id. at 1164. Further, Jackson's attorney failed to present evidence of Jackson's t u m u ltu o u s childhood, which included "repeated beatings," chokings by his m o t h e r when she was angry with him, neglect, instability, signs of mental illn e s s , and a diagnosis of schizophrenia. Id. at 1163. In Wiggins, Neal, and Jackson, the defendants' attorneys were on notice th a t further research would have unearthed additional material information, but fu n d a m e n t a lly failed to perform that research. Here, Simmons has not shown t h a t there was such additional material information. Further, it seems that C u n n in g h a m and his co-counsel performed at least some investigation into the 14

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No. 08-70048 d e a th s of Simmons's uncles and the violence Simmons suffered as a child. It is n o t clear how thorough the investigation was. It is possible that a reasonable a t t o r n e y would have investigated these issues more extensively. Also, Simmons a s s e r t s that counsel did not ask the court for funds to employ an investigator for a n y purpose other than DNA analysis. It is possible that a reasonable attorney w o u ld have at least tried to get an investigator to explore Simmons's childhood. Further, it is unclear how thoroughly counsel prepared the mitigation witnesses. On the other hand, counsel performed enough research to present several w it n e s s e s who provided coherent testimony. Viewed as a whole, this testimony p r o v id e d a detailed account of the privations Simmons suffered as a child. Certainly, the performance of Simmons's attorney far surpassed that of the a t t o r n e y s in Wiggins, Neal, and Jackson. Under § 2254, we afford great deference to the Mississippi Supreme Court. We conclude that jurists could not reasonably debate whether the Mississippi S u p r e m e Court applied Strickland unreasonably when it found counsel's in v e s t ig a t io n was not deficient. Simmons also argues that under Williams v. Taylor, 529 U.S. 362 (2000), counsel's performance was per se deficient because counsel failed to secure S im m o n s 's military, school, and other records. We do not agree that Williams c r e a t e s such a bright-line rule. The Williams Court performed a holistic

a n a ly s is , under which counsel's failure to secure records was only one of n u m e r o u s factors that led the Court to find deficient representation. 529 U.S. a t 395­96. Other factors included counsel's failure to prepare for the sentencing p h a s e until a week before trial, uncover records "not because of any strategic c a lc u la t io n but because [counsel] incorrectly thought that state law barred a c c e s s to such records," introduce available evidence that Williams was b o r d e r lin e mentally retarded, introduce available mitigating testimony of prison g u a r d s , and return the phone call of a certified public accounted who visited 15

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No. 08-70048 W illia m s regularly and offered to testify that Williams seemed to thrive in the r e g i m e n t e d prison environment and was proud of the carpentry degree he r e c e iv e d while in prison. Id. While we acknowledge that counsel's failure to s e c u r e Simmons's records is troubling, we do not agree with Simmons that W illia m s renders this failure constitutionally deficient. In addition, Simmons argues that counsel's failure to call a mitigation or p s y c h o lo g ic a l expert constitutes deficient performance. We disagree. States h a v e a constitutional obligation to provide an indigent criminal defendant with a c c e s s to a psychiatrist in two circumstances: "(1) `when a defendant d e m o n s t r a t e s to the trial judge that his sanity at the time of the offense is to be a significant factor at trial' and (2) `in the context of a capital sentencing p r o c e e d in g , when the State presents psychiatric evidence of the defendant's fu t u r e dangerousness.'" White v. Johnson, 153 F.3d 197, 200 (5th Cir. 1998) (q u o tin g Ake v. Oklahoma, 470 U.S. 68, 83 (1985)); see also Bishop v. State, 812 S o . 2d 934, 939 (Miss. 2002) (finding that a defendant is not entitled to a p s y c h o lo g ic a l expert to help present mitigation evidence "where he has not r a is e d insanity as a defense or where the State does not plan to submit p s y c h o lo g ic a l evidence against the defendant."). Simmons does not argue that h e demonstrated to the trial judge that his sanity would be a significant factor a t trial or that the State presented psychiatric evidence of his future d a n g e r o u s n e s s . Simmons was not constitutionally entitled to a mitigation or p s y c h o lo g ic a l expert. Further, Simmons argues that under Bouchillon v. Collins, 907 F.2d 589 (5 t h Cir. 1990), counsel's representation was deficient because counsel failed to in v e s t ig a t e the possibility that Simmons suffered from mental defects or organic b r a in damage at the time of the murder. Bouchillon does not articulate a per se r u le that an attorney who fails to investigate the possibility of mental defects or o r g a n ic brain damage fails the first Strickland prong. In that case, Bouchillon's 16

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No. 08-70048 a t t o r n e y was on notice that Bouchillon suffered from post-traumatic stress d i s o r d e r ("PTSD"), had been institutionalized, and was on medication. Bouchillon, 907 F.2d at 596. Despite these facts, the attorney allowed

B o u c h illo n to enter a guilty plea without investigating whether Bouchillon was c o m p e t e n t to do so. Id. at 590­91. In fact, the attorney even dissuaded

B o u c h illo n when Bouchillon suggested asserting an insanity defense. Id. at 596. Based on these facts, we found that the attorney's representation was deficient. Unlike in Bouchillon, here Simmons has presented no evidence that his c o u n s e l was on notice that Simmons suffered from PTSD or any other mental d is o r d e r , had been institutionalized, or was on medication. Accordingly,

c o u n s e l's failure to investigate any mental defects or organic brain damage did n o t constitute deficient representation. F in a lly , Simmons argues that counsel's performance was deficient because c o u n s e l failed to give the State the names of Simmons's mitigation witnesses u n t il the second day of trial. Simmons fails to explain why this fact, even if a c c u r a t e , constitutes deficient performance. To the contrary, such a delay could b e considered a strategic decision to frustrate the State's efforts to prepare for c r o s s -e x a m in a t io n of these witnesses. For all of these reasons, Simmons fails to satisfy the first prong of the S tr ic k la n d test. 3. P r e ju d ic e

T o satisfy Strickland's second prong, counsel's errors must be "so serious a s to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. Under this prong, "[t]he defendant must show that t h e r e is a reasonable probability that, but for counsel's unprofessional errors, the r e s u lt of the proceeding would have been different." Id. at 694. "A reasonable p r o b a b ilit y is a probability sufficient to undermine confidence in the outcome." Id. 17

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No. 08-70048 S im m o n s does not persuade us that reasonable jurists could debate w h e t h e r the Mississippi Supreme Court erred when it found there was no r e a s o n a b le probability that the outcome of the trial would have been different a b s e n t counsel's supposed errors. Simmons argues that counsel should have p r e s e n t e d additional mitigating evidence. However, much of the evidence that S im m o n s points to--Cunningham's affidavit, De Guy's affidavit, the statement o f the hours worked by counsel, and the excerpt from the textbook--might s u p p o r t Simmons's argument that his counsel failed to investigate adequately, b u t says nothing about prejudice. To the extent that Simmons's new evidence does go to prejudice, it is la r g e ly duplicative of evidence that was presented to the jury. In some cases, c o u r ts have found prejudice where attorneys presented basic facts to the jury but fa ile d to develop those facts with important concrete details. For example, in N e a l we found prejudice even though trial counsel presented "skeletal" m it ig a t in g evidence to the jury, which established that Neal "was moderately r e t a r d e d , had been severely neglected by his family, spent several years in state in s t it u t io n s , and suffered from serious behavioral problems, including lack of s e lf-c o n t r o l and sexual identity problems." Neal, 239 F.3d at 693. We reasoned that "with a more detailed and graphic description and a fuller understanding o f Neal's pathetic life, a reasonable juror may have become convinced of Neal's r e d u c e d moral culpability." Id. at 694. The evidence in Neal provided

" a d d it io n a l details" about "the terrible living conditions with [Neals's] alcoholic a n d abusive father," "the bleak, depressing, and hopeless life at the mental in s t it u t io n s ," "Neal's abuse and mistreatment in prison and his general h e lp le s s n e s s there," and "the level of Neal's retardation and his inability to c o n t r o l much of his behavior." It also helped to humanize Neal by providing the p e r s p e c t iv e s of "people along the way who saw some worth in him and b e fr ie n d e d him." Id. 18

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No. 08-70048 Unlike in Neal, here the additional evidence that Simmons presents does n o t provide a more robust understanding of Simmons's life. The only additional e v id e n c e of Simmons's childhood shows that his mother was a gambling addict w h o regularly left the children at home when she went to play bingo, that she h a d trouble paying her bills and paying for food, and that at least once S im m o n s 's grandmother lent her money to pay her light bill. Especially

c o n s id e r in g the heinous nature of this brutal crime, we are not persuaded that t h is new evidence would have had any impact whatsoever. The only other new evidence that Simmons presents is the newspaper a r t ic le . This article shows that Simmons was troubled before the murder, but t h is article is only marginally relevant, and certainly is not sufficient to show p r e ju d ic e . In fact, the article arguably shows that Simmons was anxious about t h e drug debt he owed to Wolfe. If this is the case, then the article might a c t u a lly be harmful to Simmons, because it would support a finding of p r e m e d it a t io n . Further, the article includes the allegation that Simmons tried t o incite local teens to attack and kill African Americans, so counsel may have d e c id e d not to present it to the jury out of fear that it would do more harm than good. Finally, Harris's statement that Lori possessed information valuable to S im m o n s 's defense, seems to be nothing more than unfounded speculation. This s t a t e m e n t has no impact on our determination. Simmons fails to show that counsel's allegedly deficient performance was s o serious that it deprived Simmons of a fair trial. Thus, Simmons fails to s a t is fy the second prong of the Strickland test. B. W h e t h e r the Trial Court Erred by Precluding the Admission of R e le v a n t Mitigating Evidence S im m o n s argues that the trial court erred by excluding the videotape at s e n te n c in g . At certain times during the sentencing phase of a capital trial, the 19

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No. 08-70048 e x c lu s io n of evidence "constitute[s] a violation of the Due Process Clause of the F o u r t e e n t h Amendment" even when the evidence would otherwise be excluded u n d e r state evidentiary rules. Green v. Georgia, 442 U.S. 95, 97 (1979) (per c u r ia m ); see also Eddings v. Oklahoma, 455 U.S. 104, 111 (1982) (quoting Lockett v . Ohio, 438 U.S. 586, 604 (1978)) ("[T]he Eighth and Fourteenth Amendments r e q u ir e that the sentencer . . . not be precluded from considering, as a mitigating fa c t o r , any aspect of a defendant's character or record and any of the c ir c u m s t a n c e s of the offense that the defendant proffers as a basis for a sentence le s s than death.") (emphasis omitted); Chambers v. Mississippi, 410 U.S. 284, 3 0 2 (1973) (holding that state evidentiary rules "may not be applied m e c h a n is t ic a lly to defeat the ends of justice"). Like the United States Supreme Court, the Mississippi Supreme Court has " r e c o g n iz e d the qualitative difference between a death sentence and a sentence o f life imprisonment." Mackbee v. State, 575 So. 2d 16, 39 (Miss. 1990).

"Because of that qualitative difference, there is a corresponding difference in the n e e d for reliability in the determination that death is the appropriate p u n is h m e n t in a specific case." Id. (quoting Woodson v. North Carolina, 428 U.S. 2 8 0 , 305 (1976)). In a capital case, "the jury must have before it as much in fo r m a t io n as possible when it makes its sentencing decision." Id. Therefore, "`M ississip p i allows evidence of mitigating circumstance of an unlimited nature.'" Id. (quoting Davis v. State, 512 So. 2d 1291, 1293 (Miss. 1987)). D e s p ite the expansive language of Green, Mackbee, and related cases, we h a v e repeatedly said that Green is "limited to its facts, and certainly did not fe d e r a liz e the law of evidence." E.g., Barefoot v. Estelle, 697 F.2d 593, 597 (5th C ir . 1983). Instead, Green stands for the proposition that in rare cases "certain e g r e g io u s evidentiary errors may be redressed by the due process clause." Id. Accordingly, we must determine whether in this case the evidence is "highly

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No. 08-70048 r e le v a n t to a critical issue in the punishment phase of the trial, and substantial r e a s o n s existed to assume its reliability." Green, 442 U.S. at 97. It is clear that the videotape is highly relevant to a critical issue in the p u n is h m e n t phase of trial. It speaks directly to the issue of whether Simmons fe lt remorse for his crime--an issue that the prosecutor repeatedly brought up. Accordingly, we proceed to the second prong of the Green analysis: whether s u b s t a n t ia l reasons exist to assume the videotape's reliability. In denying Simmons's request for post-conviction relief, the Mississippi S u p r e m e Court expressed its concern that admitting the videotape might "throw o p e n the door to obvious abuse." Simmons, 869 So. 2d at 1003. While we are s y m p a th e t ic to the court's position, we conclude that in this case, reasonable ju r is t s could debate whether substantial reasons exist to assume the videotape's r e lia b ility . In Green, the Court considered: (1) whether the statement was made s p o n t a n e o u s ly to a close friend, (2) whether ample evidence corroborated the c o n fe s s io n , (3) whether the statement was against interest, and (4) whether the S t a te considered the testimony reliable. Green, 442 U.S. at 97. Here, there are in d ic a tio n s that the videotape was made spontaneously. Although we do not k n o w exactly how Simmons made the videotape--for example, whose camera he u s e d , where he was when he recorded the videotape, or whether anyone helped h im -- w e do know that he turned himself in the day after the murder. Thus, it s e e m s that he recorded the videotape immediately after the murder. On the o t h e r hand, Simmons had to make a conscious decision to record the videotape, s o the videotape was not as spontaneous as a statement made to a friend or a c e llm a te . The first factor tips in favor of reliability, although not as clearly as in Green. Unlike in Green, here the videotape was made by Simmons rather than by a n o t h e r defendant. Therefore, the second factor--whether ample evidence 21

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No. 08-70048 c o r r o b o r a t e d the confession--does not apply. As for the third factor, it is possible t o argue that the videotape was a statement against interest, because Simmons m a d e inculpatory comments. On the other hand, Simmons may have had

u lt e r io r motives to create the tape: he believed the police were hot on his trail, a n d he seemed to be trying to decide whether to turn himself in, run, or kill h im s e lf. Given his situation, it is possible that he knew he would be caught and w a n t e d a jury to believe that he was remorseful. Of course, it is also possible t h a t Simmons was simply trying to say goodbye to has family, express genuine r e m o r s e , and arrange for the proper disposal of his belongings. Accordingly, the t h ir d factor tips neither for nor against reliability. As for the final factor, the State did not introduce the videotape at trial. However, the State did fight to be able to introduce it, and it seems likely that t h e State's choice not to introduce it was a tactical decision rather than a sign t h a t the State questioned its authenticity. Thus, the State seemed to consider t h e videotape reliable. Accordingly, this factor weighs in favor of reliability, a lt h o u g h not as clearly as in Green. T h e videotape is highly relevant to a critical issue in the punishment p h a s e of trial. In addition, the Green factors tip slightly in favor of reliability. Therefore, we find that reasonable jurists could debate whether the district court e r r e d in finding that the Supreme Court of Mississippi reasonably applied fe d e r a l law in determining that Green and related cases did not require the a d m is s io n of the videotape at the mitigation stage. V. CONCLUSION R e a s o n a b le jurists could not debate whether the district court erred in fin d in g that the Supreme Court of Mississippi reasonably applied federal law in d e t e r m in in g that Simmons's constitutional right to the effective assistance of c o u n s e l as defined in Strickland was not violated. Accordingly, we DENY

S im m o n s 's request for a COA on his ineffective assistance ground. 22

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No. 08-70048 H o w e v e r , reasonable jurists could debate whether the district court erred in finding that the Supreme Court of Mississippi reasonably applied federal law in determining that Green and related cases did not require the admission of the v id e o t a p e at sentencing. Thus, we GRANT Simmons's request for a COA on this g r o u n d . The Clerk's office will provide the parties with a briefing schedule.

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