Rodney Gray v. Christopher Epps, Commissioner

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Rodney Gray v. Christopher Epps, Commissioner

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Date Filed: 08/18/2010

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

FILED
N o . 09-70021 August 18, 2010 Lyle W. Cayce Clerk P e titio n e r-A p p e lla n t v. C H R I S T O P E R B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, R e s p o n d e n t -A p p e lle e

R O D N E Y GRAY,

A p p e a l from the United States District Court for the Southern District of Mississippi

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges. F O R T U N A T O P. BENAVIDES, Circuit Judge: P e t itio n e r Rodney Gray ("Gray"), convicted of capital murder in M is s is s ip p i and sentenced to death, appeals the district court's denial of federal h a b e a s relief. Gray contends that his counsel rendered ineffective assistance by fa ilin g to investigate and present mitigating evidence during the sentencing p h a s e of trial. Concluding that the state court's adjudication of Gray's claims w a s not an unreasonable application of clearly established Federal law, we A F F IR M .

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No. 09-70021 I. BACKGROUND A. F a c t u a l History

O n August 15, 1994, in Newton County, Mississippi, Grace Blackwell, the 7 9 -y e a r old murder victim, drove to her local bank and proceeded to the drivet h r o u g h window. Arlene McCree was working as a bank teller, and Blackwell h a d been her customer since 1980. McCree thought Blackwell looked "terrible." Usually, McCree and Blackwell would engage in small talk; however, on this o c c a s io n , Blackwell would not look at or converse with McCree. Instead,

B la c k w e ll simply stated "I need twelve hundred dollars." McCree had to prompt B la c k w e ll by asking her whether she wanted to cash a check or use a withdrawal s lip . In response, Blackwell threw a blank check into the window tray. McCree c o u ld not see the backseat of the car because there were clothes "hanging in a v e r y unusual manner." Concerned by Blackwell's behavior, McCree asked

B la c k w e ll whether "something [was] wrong or . . . someone [was] in the car with h e r ." Blackwell did not respond to the questions; instead, she attempted to m o u t h words to McCree, who could not read Blackwell's lips. After McCree m a d e out the check for $1200, Blackwell signed it. Although McCree attempted t o stall the transaction, she subsequently placed the money in the window tray, a n d Blackwell grabbed it. Blackwell then drove away saying "I'm hurrying, I'm h u r r y in g ." McCree did not think that Blackwell was speaking to her. Believing B la c k w e ll had been taken hostage, McCree called the Sheriff's Office. A deputy sheriff was dispatched to Blackwell's home and found the front d o o r open. Blackwell's car was not there and the "telephone wires [were]

d is c o n n e c t e d ." Meanwhile, Harry Jones was driving his car on Pine Bluff Road in Newton County and saw a brown Chrysler, which he later identified at trial a s Blackwell's car, stopped in the road. He saw a man "wrestling with this lady." Although he could not identify the woman, he identified Gray as the driver of B la c k w e ll's car. 2

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No. 09-70021 L a t e r that same day, Lane McDill was driving to town on Newly Road 1 in N e w t o n County and observed something lying "just off the bridge on the righth a n d side of the road." McDill stopped his vehicle and quickly discovered it was a deceased woman. He then drove to town and notified the police that there was a body at the bridge. As a result, law enforcement officers arrived at the scene, a n d the ensuing investigation revealed that Blackwell had been killed by a s h o tg u n wound to the face. A forensic pathologist determined that Blackwell s u ffe r e d a "series of injuries," "including the presence of two shotgun wounds, as w e ll as multiple scrapes of the skin, called abrasions, and lacerations, a cut, and c o n t u s io n s ." The lethal shotgun wound was a "contact shotgun wound with the m u z z le of the shotgun placed against the area of the mouth." The second

s h o tg u n wound "is consistent with having gone through an intermediate target s c a t t e r in g and striking the decedent over the left arm, left chest, and left cheek." Blackwell's other injuries were consistent with either being struck by or pushed o u t of a vehicle. The forensic investigation also revealed that Blackwell had b e e n raped and that the DNA analysis indicated that Gray was the perpetrator.2 A d d i t io n a lly , the Newton County Sheriff's Office interviewed Mildred C u r r y , who was Gray's girlfriend at the time. Curry told them that Gray had called from jail and informed her that there was money in her bathroom vent. A deputy sheriff searched her residence and found $1,123 in the bathroom vent. The search also uncovered the clothes and boots that Gray was wearing on the d a y of the murder.

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Newly Road was formerly known as "Everett Store Road."

The "significance of [the] match is that there is a probability that selecting someone other than . . . someone unrelated to [Gray] in the population, having the same profiles as that sample, would be less than 1 in 446,000,000 in Black, Caucasian, and Hispanic populations."

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No. 09-70021 B. P r o c e d u r a l History

I n 1995, a Newton County, Mississippi grand jury returned an indictment t h a t charged Gray with committing intentional murder while engaged in the c o m m is s io n of the crime of kidnapping and/or rape in violation of Miss. Code A n n . § 97-3-19(2)(e). A jury convicted Gray as charged. After a sentencing h e a r in g , the jury unanimously found, among other things, that there were "in su ffic ie n t mitigating circumstances to outweigh the aggravating

c ir c u m s t a n c e s " and that the "Defendant should suffer death." The trial court s e n te n c e d Gray to death by lethal injection. On direct appeal, the Mississippi Supreme Court affirmed Gray's c o n v ic t io n and sentence. Gray v. State, 728 So.2d 36 (Miss. 1998). Gray applied fo r state post-conviction relief, which the Mississippi Supreme Court ultimately d e n ie d in a published opinion. Gray v. State, 887 So.2d 158 (Miss. 2004). Gray s u b s e q u e n t ly filed a federal petition for writ of habeas corpus, which the district c o u r t denied in a memorandum opinion and order. The district court granted G r a y a Certificate of Appealability (COA) with respect to the issue he now raises o n appeal.3

II.

S T A N D A R D OF REVIEW

G r a y filed his 28 U.S.C. § 2254 petition for a writ of habeas corpus after t h e effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). The petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S.
Pursuant to Fed. R. App. P. 31(a), Gray's initial brief was due on December 9, 2009. Counsel obtained an extension of time until January 8, 2010. Counsel requested another extension of time, which was denied as moot when his brief was ultimately filed on January 11. On March 11, 2010, counsel submitted a motion for COA on additional issues as to which the district court denied a COA. The Clerk responded with a letter, advising that no action was being taken on the motion because it was filed out of time. Counsel has not asked us to revisit the Clerk's notice that no action would be taken. Even if the COA motion were considered timely filed, it fails to make a substantial showing of the denial of a constitutional right as to those issues. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, it is denied.
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No. 09-70021 3 2 0 , 336 (1997). Pursuant to the federal habeas statute, as amended by AEDPA, w e defer to a state court's adjudication of a petitioner's claims on the merits u n le s s the state court's decision was: (1) "contrary to, or involved an u n r e a s o n a b le application of, clearly established Federal law, as determined by t h e Supreme Court of the United States"; or (2) "resulted in a decision that was b a s e d 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). A state court's d e c is io n is deemed contrary to clearly established federal law if it reaches a legal c o n c lu s io n in direct conflict with a prior decision of the Supreme Court or if it r e a c h e s a different conclusion than the Supreme Court based on materially in d is t in g u is h a b le facts. Williams v. Taylor, 529 U.S. 362, 404­08 (2000). A s t a t e court's decision constitutes an unreasonable application of clearly e s t a b lis h e d federal law if it is "objectively unreasonable." Id. at 409. Further, p u r s u a n t to section 2254(e)(1), state court findings of fact are presumed to be c o r r e c t , and the petitioner has the burden of rebutting the presumption of c o r r e c t n e s s by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 9 4 1 , 947 (5th Cir. 2001). III. I N E F F E C T IV E ASSISTANCE CLAIM

G r a y argues that his Sixth Amendment right to effective assistance of c o u n s e l was violated during the sentencing phase of his trial. He contends that h is trial counsel failed to adequately investigate and present mitigating evidence with respect to his family history and educational and mental health background a t sentencing. More specifically, the district court granted a COA as to the claim o f ineffective assistance based on counsel's failure to request their own courta p p o in te d psychiatrist to offer mitigating evidence and counsel's failure to p r e s e n t the following: (a) evidence of the poverty of Gray's family during his childhood; (b) e v id e n c e of the lack of support for Gray in his childhood, leading to

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No. 09-70021 lo w grades and other problems; (c) evidence of the psychological f a c t o r s and condition suffered by Gray at the time of the alleged o ffe n s e ; (d) evidence of Gray's dull normal intelligence, and (e) a d e q u a t e character testimony when family members, friends and n e ig h b o r s were available to do so, when witnesses were available a n d willing to offer helpful testimony. T o establish ineffective assistance of counsel, Gray must show (1) defense c o u n s e l's performance was deficient and (2) this deficient performance p r e ju d ic e d the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We m u s t find that trial counsel "made errors so serious that counsel was not fu n c tio n in g as the `counsel' guaranteed . . . by the Sixth Amendment." Id. The S u p r e m e Court instructs courts to look at the "norms of practice as reflected in t h e American Bar Association and the like" and to consider "all the c ir c u m s t a n c e s " of a case. Id. at 688. While "[j]udicial scrutiny of counsel's p e r fo r m a n c e must be highly deferential," Gray can demonstrate deficient p e r fo r m a n c e if he shows "that counsel's representation fell below an objective s t a n d a r d of reasonableness." Id. at 688. However, "[t]here is a `strong

p r e s u m p t io n that counsel's conduct falls within the wide range of reasonable p r o fe s s io n a l assistance.'" United States v. Webster, 392 F.3d 787, 793 (5th Cir. 2 0 0 4 ) (quoting Strickland, 466 U.S. at 689). Strickland's "prejudice" prong r e q u ir e s a reasonable probability that, but for the deficient performance of his t r ia l counsel, the outcome of his capital murder trial would have been different. Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient t o undermine confidence in the outcome." Id. A. P e r fo r m a n c e Prong

As previously set forth, Gray contends that trial counsel rendered in e ffe c t iv e assistance by failing to investigate and present substantial mitigating evidence during the sentencing phase of his trial. In determining w h e t h e r trial counsel's performance was deficient, our "focus [is] on whether the 6

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No. 09-70021 in v e s t ig a t io n supporting counsel's decision not to introduce [additional] m it ig a t in g evidence of [a petitioner's] background was itself reasonable." Wiggins v. Smith, 539 U.S. 510, 522­23 (2003). Thus, we must consider the reasonableness of trial counsel's investigation. The record reveals that, prior to trial, Gray's counsel filed a motion for a p s y c h ia t r ic examination of Gray. In the motion, counsel averred that they had r e a s o n to believe that Gray was suffering from "some mental disease, injury or c o n g e n it a l deficiency which could render [him] incapable of preparing a defense a n d standing trial." Counsel further averred that they had reason to believe t h a t Gray might be "incapable of intelligently participating in the process of this c a u s e ." The trial court granted the motion, appointing Dr. Charlton Stanley, P h .D , a forensic psychologist, and Dr. Donald Guild, M.D., a psychiatrist, to e x a m in e Gray "to determine his present ability to stand trial and assist his a t t o r n e y s in his defense; and further examine him to determine his ability to k n o w the difference between right and wrong and to understand the nature and q u a lit y of his actions at the time of the alleged offense." After Gray was examined, Dr. Stanley issued a 9-page report, s u m m a r iz in g the test results and conclusions. This report will be more fully set fo r t h in Section III. B., infra; however, the following is a summation of the r e p o r t . The report provided that Gray had a full scale IQ score of 80, which is c la s s ifie d as low dull normal. Dr. Stanley found that Gray was very cooperative d u r i n g the testing. Gray was found to be an "antisocial type," with an

" u n d e v e lo p e d or underdeveloped conscience." Gray is depressed, has "very poor im p u ls e control and has had some suicidal ideation." Gray appears to have A t te n t io n Deficit Disorder and mild dyslexia. Gray's neuropsychological test r e s u lt has a "pattern often associated with some residual artifacts from drug use, a lt h o u g h the attention deficit and dyslexia present a similar picture." Dr.

S t a n le y concluded Gray did not appear to have any "significant `brain damage' 7

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No. 09-70021 o f a type usually referred to as Organic Brain Syndrome." Gray was found to be c o m p e t e n t to assist his lawyer in preparing a defense. Gray did not meet the t e s t for insanity under the M'Naghten Rule. This report was furnished to d e fe n s e counsel, the prosecutor, and the trial court. G r a y contends that this report should have spurred his counsel to conduct fu r t h e r investigation. Gray further contends that his defense counsel's

in v e s t ig a t io n is very similar to an investigation that the Supreme Court found to constitute ineffective assistance. See Wiggins, 539 U.S. at 523­34. As in the in s t a n t case, defense counsel arranged for a psychologist to examine Wiggins. Id. at 523. The psychologist concluded that Wiggins "had an IQ of 79, had d iffic u lt y coping with demanding situations, and exhibited features of a p e r s o n a lit y disorder." Id. Although we agree with Gray that his psychologist's report was similar to W ig g in s 's report, we do not agree that the psychological report is what the S u p r e m e Court relied upon to conclude that reasonable counsel would have c o n d u c t e d further investigation into Wiggins's background. In Wiggins, the S u p r e m e Court explained that a presentence report and Social Services d o c u m e n t s gave some indication of Wiggins's horrible childhood. Id. at 523­25. The Supreme Court found that the limited scope of counsel's investigation was u n r e a s o n a b le in light of what counsel discovered in those documents--not with r e s p e c t to the contents of the psychologist's report. Id. at 525. The Social S e r v ic e s documents revealed that Wiggins's "mother was a chronic alcoholic; W ig g in s was shuttled from foster home to foster home and displayed some e m o t io n a l difficulties while there; he had frequent, lengthy absences from school; a n d , on at least one occasion, his mother left him and his siblings alone for days w it h o u t food." Id. Based on this information, reasonably competent counsel s h o u l d "have realized that pursuing these leads was necessary to making an

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No. 09-70021 in fo r m e d choice among possible defenses, particularly given the apparent a b s e n c e of any aggravating factors in petitioner's background." Id. Additionally, however, the Supreme Court also recognized that it was s t a n d a r d practice in Maryland in 1989 to obtain a social history report. Id. at 5 2 4 . Indeed, although the Public Defender's office had funds available to pay a fo r e n s ic social worker, Wiggins's counsel failed to request such a report. Thus, t h e Supreme Court found counsel's failure to adequately investigate Wiggins's fa m ily and social history in pursuit of mitigating evidence constituted in a d e q u a t e performance. Id. at 534. In the instant case, Gray asserts that his counsel's only contact with his fa m ily was one interview with Gray's mother prior to trial. That assertion c a n n o t be entirely correct because Rosa Lee Gallapsy, Gray's mother's first c o u s in , testified at Gray's sentencing hearing. Although Gray contends that his

c o u n s e l did an inadequate investigation into his family and social history, w it h o u t affidavits from defense counsel, we are not certain of the full extent of c o u n s e l's investigation. Thus, we are at a disadvantage in determining the r e a s o n a b le n e s s of the scope of the investigation, which is the focus of the p e r fo r m a n c e prong inquiry. Wiggins, 539 U.S. at 522­23. Further, without s t a t e m e n t s from counsel, we can only speculate about the basis for their s t r a t e g ic decisions made with respect to putting on their case in mitigation at s e n te n c in g . The Supreme Court has explained that "[i]f it is easier to dispose of a n ineffectiveness claim on the ground of lack of sufficient prejudice, which we e x p e c t will often be the case, that course should be followed." Strickland, 466 U .S . at 697. Because we find it easier to dispose of the instant claim based on la c k of prejudice, we turn to the prejudice inquiry. B. P r e ju d ic e Prong

I n the context of a claim that counsel failed to discover and present m it ig a t in g evidence, to determine whether a petitioner has shown the required 9

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No. 09-70021 p r e ju d ic e , "we reweigh the evidence in aggravation against the totality of a v a ila b le mitigating evidence." Wiggins, 539 U.S. at 534. Thus, we will first set f o r t h the mitigating evidence admitted at trial, the mitigating evidence Gray h a s submitted during habeas proceedings, and the aggravating evidence p r e s e n t e d at trial. Then we will reweigh all the mitigating evidence against the a g g r a v a t in g evidence to determine whether Gray has shown that, had counsel p resen ted all the available mitigating evidence, there is a reasonable probability that a juror would have found that the mitigating evidence outweighed the a g g r a v a t in g evidence. 1. M it ig a t in g Evidence Presented at Sentencing

R o s a Lee Gallapsy, Gray's mother's first cousin, testified at Gray's s e n te n c in g hearing. Gallapsy testified that she had known Gray "all his life." Gallapsy's son and Gray were friends and Gray was "always down to [her] house, o r we [were] over to his house." She further testified that she knew Gray well a n d had never seen him behave violently. She described Gray as "respectable" a n d "just a normal child." In addition to Gallapsy, Gray's counsel called Louise Bradley to testify at s e n te n c in g . She testified she had known Gray for twelve years and that he was " i n [her] house every day" and her grandson went to school with Gray. She d e s c r ib e d Gray as "just a real nice young man, because [she] didn't have any t r o u b le whatsoever out of him." Gray's counsel also called Roosevelt Jones, a local minister, who testified t h a t he owned a body shop business. Gray would stop by the shop and talk to J o n e s . Gray "never gave [him] any trouble." Jones never observed Gray being v io le n t but he "heard people talking." Gray's counsel next called Hattie Morgan, who lived next door to Gray's p a r e n t s . She testified that Gray had "been in the neighborhood all his life." Morgan had known Gray "all his life." Morgan testified Gray "was real nice and 10

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No. 09-70021 p o lit e and never bothered nothing [she] had or said anything to [them]." Gray w a s a "normal boy" and never violent. Finally, Gray's counsel called Annie Tatum, Gray's mother, to testify at s e n te n c in g . Tatum testified that her son was "normal." He was "not rebellious" o r violent. Tatum and Gray's father separated when Gray was six years old and d iv o r c e d several years later. Gray "couldn't really deal with it." His parents' s e p a r a t io n adversely affected his behavior at school. Gray "would always do t h in g s that would disturb the class, so that he could go to the office." The p r in c ip a l "would say [Gray] wasn't no problem" if he stayed in the office. Tatum asked the jury to give her son "[l]ife imprisonment rather than death." 2. M it ig a t in g Evidence Not Presented at Trial a. L a y witnesses

I n addition to the testimony offered in mitigation at sentencing, Gray c o n t e n d s that counsel should have called the following witnesses: his three s is t e r s , Stephanie Wilson, Melissa Jones, and Yolanda Wheaton; and Ola Jones, w h o had been a teacher at Gray's school. " [ T ] o p r e v a i l o n a n i n e f f e c t i v e a s s is t a n c e claim based on counsel's failure to call a witness, the petitioner must n a m e the witness, demonstrate that the witness was available to testify and w o u ld have done so, set out the content of the witness's proposed testimony, and s h o w that the testimony would have been favorable to a particular defense." Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). First, we note that Gray did not provide an affidavit from either Melissa J o n e s or Yolanda Wheaton indicating that they would have testified at his trial. Instead, with respect to those two uncalled witnesses, Gray has provided a ffid a v it s from Tomika Harris, an investigator, and Deirdre Jackson, a p a r a le g a l, both of whom were working for Gray's habeas counsel. Although t h e s e affidavits contain hearsay statements that Gray's sisters made about G r a y , there is no statement from the sisters providing that they would have 11

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No. 09-70021 t e s t ifie d at Gray's trial. This record, therefore, does not allow us to conclude t h a t these two sisters would have testified as witnesses at Gray's trial. Day, 566 F .3 d at 538; see also Lincecum v. Collins, 958 F.2d 1271, 1280 (5th Cir. 1992) (e x p la in in g that this Court is "loathe to accept the self-serving statement of h a b e a s counsel as evidence that other persons were willing and able to testify" in mitigation at a defendant's trial).4 G r a y did submit an affidavit executed by Ola Jones. In her affidavit, J o n e s does not state that she would have been available to testify at Gray's trial. In any event, Jones does not provide much mitigation evidence in her affidavit. She states that Gray was enrolled in the special education program sometime " b e t w e e n the grade of 4th and 8th." Jones did not know Gray's IQ score but s t a t e d that "he had to have had a learning disability or he would not have been p la c e d in the special education program." Jones referred to Gray as a "loner" a n d said she witnessed him "having tantrums in class and in the hallway." Stephanie Wilson, Gray's older sister, did execute an affidavit; however, s h e did not expressly state that she would have testified on Gray's behalf at his t r ia l. She did state that she "never was interviewed by any of [Gray's] attorneys a n d I feel that they did not do all that they could have done to represent him in c o u r t." Although we are not persuaded that this statement carries Gray's

b u r d e n of demonstrating that Wilson would have testified at his trial, we will a s s u m e for purposes of this appeal that she would have done so. Wilson's a ffid a v it also provided that, as a child, Gray could not take care of himself or do b a s ic chores. He did not like school and had few friends. Also, he had difficulty s le e p in g , exhibited impulsive behavior, and could not maintain employment. As set forth previously, Gray's mother, Annie Tatum, did testify during s e n te n c in g at his trial. Nonetheless, Gray contends that counsel should have
We note that these two sisters' hearsay statements are similar to the statements of Gray's mother, Annie Tatum, and third sister, Stephanie Wilson, which are discussed below.
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No. 09-70021 q u estion e d Tatum about his childhood behavioral problems, his placement in the s p e c ia l education program, a psychological evaluation of him, and his inability t o attend to basic chores or hold employment. b. M e n t a l Health Center Records

In addition to these affidavits, Gray submitted records obtained from the W e e m s Community Mental Health Center. Gray contends that counsel should h a v e offered evidence from the records in mitigation at sentencing. He also c o n t e n d s that, based on these records, counsel should have moved for the a p p o in tm e n t of a psychiatric expert to help develop the evidence for presentation a t sentencing. These records show that when he was ten years old his mother b r o u g h t him to the center because he had been "[e]xhibiting continual violent b e h a v io r at school and expressing anger inappropriately." 5 Gray's mother

r e p o r t e d no problems at home but she had received complaints from the school a b o u t his behavior. She also reported that he had no developmental problems and had a "normal childhood." Gray's mother also thought that his behavior at s c h o o l may be related to his parents' marital problems. The social worker in d ic a te d that Gray appeared healthy and was "quite well-behaved during [the] in t e r v ie w ." The mother was given behavioral management techniques to use w it h Gray. Gray received both individual and family counseling. After Gray's b e h a v io r improved and stabilized, he was discharged from treatment. A year la t e r , Gray was referred to the center because he had been stealing from family

Also contained in these records is a letter from Gray's principal to his mother. It provides as follows: [Gray] is suspended Thursday, December 2, 1982. [Gray] went into a classroom without permission and hit a girl student in the face. I am suggesting that you discuss [Gray's] continual violent behavior at school. He is too loud and easily loses his temper. This usually results in a physical outburst with [Gray] hitting, kicking or choking someone. This type of behavior will not be tolerated. Please come to school Friday with [Gray] for a conference.

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No. 09-70021 m e m b e r s and had behavioral problems. The listed diagnosis was "Conduct D is o r d e r , Socialized, Non-aggressive." Gray was able to complete a restitution p la n , and his mother followed through with a behavior management plan. S e v e r a l years later, sixteen-year old Gray returned to the center after he s h o p lift e d a jacket. Gray's diagnosis was listed as "Conduct Disorder, Soc. A g g r e s s iv e ." His mother reported that Gray had been suspended from school t w ic e and that, during middle school, she had had several conferences due to his " r e b e llin g against the authority of his teachers." The social worker noted that G r a y had a "blank affect and a hesitant manner." The notes also provide that G r a y did not appear depressed and gave no indication that he understood the " g r a v it y of his situation. Memory is intact. He is probably functioning in a b o r d e r lin e intellectual range." Although Gray was scheduled for counseling, his s u b s e q u e n t arrest for theft precluded the treatment. c. Psychologists' Reports

G r a y also submitted to the district court an affidavit executed by Daniel H . Grant, Ed.D, a psychologist who reviewed Gray's psychological record, in clu d in g Dr. Stanley's report, school records, testimony from Gray's sentencing h e a r in g , and the affidavits that Gray submitted during habeas proceedings. In h is affidavit, Dr. Grant criticized Dr. Stanley's report (which had been done prior t o trial),6 stating that Dr. Stanley's "opinions were inconsistent with [Dr.

As previously set forth, Dr. Stanley's report provided that Gray had an IQ score of 80. The report also provided that Gray "sees the world in an overly personalized, peculiar and idiosyncratic fashion. This suggests he will have difficulty maintaining adequate social relationships for an extended period of time." Various anxiety and depression tests were administered and his scores were consistent with marked depression. The report stated that Gray had "suicidal ideation, poor self-concept, and much hostility turned inward." Dr. Stanley recommended that Gray be placed on suicide precautions. Gray reported to his examiners that "Sexually, I like older women." Additionally, in light of a possible learning disability and self-reported forgetfulness, a neuropsychological battery was administered. Gray's memory functioning was somewhat lower than his IQ, suggesting some genuine memory issues. Dr. Stanley concluded that Gray likely does have an Attention Deficit Disorder. Gray's low scores on the Stroop Color-Word

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No. 09-70021 S t a n le y 's ] findings." Dr. Grant concluded that "the state failed to administer all o f the tests necessary to determine whether some sort of neurological condition e it h e r prevented Mr. Gray from controlling an impulse or prevented him from fu lly perceiving the wrongness of the acts for which he was convicted." 7 R e ly in g on Dr. Grant's above-quoted affidavit, Gray requested the district c o u r t to authorize funding for a forensic psychologist with expertise in n e u r o p s y c h o lo g ic a l testing to examine Gray and determine whether he was

test could indicate dyslexia or some atrophy of the prefrontal areas caused by chronic drug abuse. However, Gray's scores are "more often associated behaviorally with poor impulse control than anything else." Gray's scores on the Wisconsin Card Sorting Test were "more typical of the prefrontal dysfunction than anything else, and is often associated with poor impulse control as well as Attention Deficit Disorder." The Luria-Nebraska Neuropsychological Battery score was used to examine statistical indicators of brain dysfunction. Four of the five indicators fell within the abnormal range, indicating "a fairly high likelihood of brain dysfunction, unless confounding factors such as drugs could account for the scores." The errors Gray made on that battery of tests were "quite consistent with a learning disability, probably Attention Deficit Disorder and Hyperactivity." However, Dr. Stanley could not rule out any "artifacts associated with previous use of drugs." Dr. Stanley's "overall assessment of the neuropsychological battery is that there are some abnormal scores, but they can be accounted for by a learning disability which is probably chronic and endogenous. There is no history of a clinically significant head injury. Specifically, the neuropsychological tests are consistent with Attention Deficit." The Carlson Psychological Survey indicated that Gray is "markedly antisocial," and although he may appear cooperative, "beneath this exists characteristics of impulsivity, intolerance, hostility, aggression, and irrational behavior." Dr. Stanley concluded that Gray was "disturbed," but noted that Gray's "motivation for psychological or psychiatric treatment will be remarkably low." He further concluded that Gray needed a highly structured environment.
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Dr. Grant's affidavit further provided that:

Those tests did not fully investigate whether Mr. Gray had an impaired ability to conform his conduct to the requirements of the law. They also did not take into consideration his numerous emotional and psychological problems, his difficult childhood, depression, suicidal tendencies, anxiety, learning disabilities, and low intelligence as regards their effect upon his behavior. The state expert, Dr. Stanley, performed tests primarily to determine competence to stand trial, and not determine mitigating circumstances. A neuropsychologist is needed in this case. Neuropsychological tests such as the Halstaid-Reitan and Luria-Nebraska do not appear to have been properly interpreted, regarding the existence of organic brain dysfunction and how the deficits could be mitigating.

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No. 09-70021 m e n ta lly retarded. The district court granted the motion authorizing the

fu n d in g , and Dr. Gerald O'Brien, a clinical and forensic psychologist, was chosen a s the expert. Dr. O'Brien interviewed Gray and administered psychological t e s t s . In the interview, Gray reported to Dr. O'Brien that he slept too much but d e n ie d any suicidal thoughts. He reported no family history of psychological or s u b s t a n c e abuse problems. Gray stated that he had taken special education c la s s e s in fourth grade and then "tested out." He admitted to disruptive

b e h a v io r in class and that he dropped out of school in the ninth grade. Gray s t a t e d that when he was 16 years old he was sent to "Youth Court" for burglary a n d shoplifting. Dr. O'Brien concluded that Gray's "current tested Full Scale IQ is likely t o be in the 86-93 range."8 On the screening test for the Luria-Nebraska

N e u r o p s y c h o lo g ic a l Battery, Gray had an error score of 5, "well within the cutoff s c o r e (8), suggesting that if the entire neuropsychological test battery were a d m in is t e r e d he would be unlikely to show significant specific or generalized n e u r o p s y c h o lo g ic a l deficits." Gray achieved a score of 14 (out of 21) on the 21 W o r d Test. That is considered a "normal result." With respect to the

P e r s o n a lit y Assessment Screener, Gray's "overall score was within the normal r a n g e , suggesting low potential for significant emotional or behavioral p r o b le m s ." Dr. O'Brien also administered the Personality Assessment Inventory fo r comparative purposes and Gray produced a "generally valid profile. The c lin ic a l results included a significant elevation on one scale only, suggesting s u s p ic io u s n e s s , hostility, and hypervigilance in his relations with others." However, Dr. O'Brien attributed the elevated scale to Gray's current

With respect to the WAIS-III test, Gray scored a Verbal IQ of 89, Performance IQ of 90, for a Full Scale of 89. These scores placed his "overall intellectual functioning in the low average range." Gray scored within the average range on the SHIPLEY test, which translated to an estimated (WAIS-R) IQ of 96. With respect to the WRAT4 test, his achievement scores were: reading (90) at grade level 10.2; and sentence comprehension (87) at grade level 9.9.

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No. 09-70021 c ir c u m s t a n c e s on death row--not significant psychopathology. Further, Dr. O 'B r ie n concluded that Gray "is currently functioning in the low average range in telle c t u a lly , even allowing for lower Flynn-corrected test scores from 1995, and s e c o n d -h a n d reports of past school performance problems. . . . There are also no i n d ic a t io n s of significant emotional or psychological difficulties that cannot be e x p la in e d by his current environment and legal situation."9 Dr. O'Brien

c o n c lu d e d that Gray's current intellectual functioning falls in the low average r a n g e , but "he may have functioned at a slightly lower level" prior to in c a r c e r a t io n . Gray is not considered mentally retarded. Various "test results a n d clinical observations do not indicate significant emotional or psychological d iffi c u l t i e s , although there are suggestions of current suspiciousness and h o s tilit y in his dealings with other people." 3. A g g r a v a t in g Evidence at Trial

A t the beginning of the sentencing phase of Gray's trial, the prosecutor m o v e d "to allow the State to bring forward all evidence that was produced at the g u ilt phase of the trial and to incorporate that evidence in the sentencing phase, t o include all witness testimony and all exhibits that were introduced through t h e s e witnesses." The trial court granted the motion. The aggravating evidence o ffe r e d during the guilt phase of trial included evidence that Gray kidnapped 79y e a r old Grace Blackwell from her home, forced her to drive to her bank to w it h d r a w $1200, raped her, shot her twice with a shotgun, and ran over her with h e r vehicle. Blackwell's car had blood "all over the passenger side . . . both in s id e and outside." Gray, 728 So.2d at 43. The front of the car had been d a m a g e d and "[t]here was blood and tissue on the front, across the hood,

The "Flynn Effect" refers to the theory that average IQ scores in populations artificially increase over time. In re Salazar, 443 F.3d 430, 433 (5th Cir. 2006). However, the Flynn Effect "has not been accepted in this Circuit as scientifically valid." In re Mathis, 483 F.3d 395, 398 n. 1 (5th Cir. 2007). The Mississippi Supreme Court has not addressed the scientific validity of the Flynn Effect.

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No. 09-70021 w in d s h ie ld , and down the passenger side of the vehicle." Id. Blackwell's body w a s found lying beside the road. As the district court noted, the injuries to B la c k w e ll's body were horrific. "She had lacerations on her leg and facial area, s e v e r e wounds to her mouth and back side of her head, along with a gash to the b a c k of her head." Gray, 728 So.2d at 43. "The lethal injury was a contact s h o tg u n wound to the mouth." Id. The non-lethal shotgun injury was to the left s id e of her face, chest and left arm. Id. "There were multiple small entrance w o u n d s indicating secondary missile pattern injury." Id. On the right side of h e r body she had "large scrapes of skin as if she slid on a hard object." Id. at 44. "There was also an abrasion or scrape of one inch to the labia majora or vaginal v a u lt , which indicated forceful sexual penetration." Id. There was testimony t h a t "[i]t would have taken a period of time to die, as the bleeding was from s e c o n d a r y vessels." Id. D u r in g the sentencing phase, the prosecutor called three witnesses, the v ic t im 's only child, Gerry Martin, and the victim's two granddaughters, Crystal M o u ld s and Amber Arnold. The witnesses were all very close to the victim. They testified that Blackwell had lived with her daughter and helped her raise h e r children. They testified that Blackwell was a devoted mother, grandmother, a n d great-grandmother who helped them in anyway she could. They testified a b o u t the pain of losing her and how it had devastated the family. They were d e e p ly saddened that her great-grandchildren would grow up without her. 4. R e w e ig h in g of Evidence

A s previously set forth, in determining whether Gray has shown prejudice, " w e reweigh the evidence in aggravation against the totality of available m it ig a t in g evidence." Wiggins, 539 U.S. at 534. In view of the aggravating e v id e n c e with respect to the murder, kidnapping, and rape, we are not p e r s u a d e d that, had defense counsel presented the currently proffered evidence

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No. 09-70021 i n mitigation, there is a reasonable probability of a different outcome.1 0 We c e r t a in ly are not persuaded that the Mississippi's Supreme Court's conclusion t h a t the new evidence "would have had little if any persuasive effect on the jury in mitigation" is unreasonable. Gray, 887 So.2d at 168. The new evidence portrays Gray as either dull normal or low average in t e lle c tu a l functioning. He behaved inappropriately and sometimes violently a t school.1 1 Gray was in special education for an unspecified period of time b e fo r e he "tested out." He quit school after ninth grade. He shoplifted and stole fr o m his family. He was unable to accomplish basic chores and had learning d is a b ilit ie s such as Attention Deficit Disorder and mild dyslexia. At the time of t r ia l, he was depressed and having suicidal thoughts. Gray is "markedly

a n tisocia l" and "disturbed," with an "undeveloped or underdeveloped conscience." Although Gray points to Dr. Grant's affidavit criticizing Dr. Stanley's report, G r a y fails to even acknowledge Dr. O'Brien's report which concludes that Gray w a s unlikely to show significant specific or generalized neuropsychological d e fic it s . Dr. O'Brien found that Gray had low potential for significant emotional o r behavioral problems. Unlike the expert opinions relied upon by Gray, Dr. O 'B r ie n had actually interviewed Gray and administered the tests. Although G r a y contends that an investigation would have revealed severe psychological o r neurological problems, Dr. O'Brien's conclusions refute that contention. Cf. B la n to n v. Quarterman, 543 F.3d 230, 239 (5th Cir. 2008) (explaining that

In other words, even if we were reviewing this claim de novo, we would find no Strickland prejudice. At trial, his mother testified that her divorce from his father was difficult for Gray. She testified that it affected his behavior at school in that he "would always do things that would disturb the class, so that he could go to the office." However, she did not testify as to his violent behavior.
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No. 09-70021 p e t it io n e r 's claim of organic brain damage was "persuasively rebutted" by the s t a t e 's psychiatrist).12 G r a y 's mother's affidavit provided that Gray could not maintain e m p lo y m e n t or accomplish basic chores. He had difficulty dealing with his p a r e n t s ' divorce and behaved violently at school on occasion. This evidence in m it ig a t io n pales in comparison to the type of powerful mitigating evidence that t h e Supreme Court has opined would have a reasonable probability of causing a juror to find that the mitigation evidence outweighed the aggravating evidence. Wiggins, 539 U.S. at 535; Williams, 529 U.S. at 395; see also Blanton, 543 F.3d a t 239 (explaining that "the mitigating evidence presented by [petitioner] during t h e state habeas proceeding was not nearly as strong as that submitted by p e t it io n e r s in recent cases in which the Supreme Court has found prejudice"). For example, "Wiggins experienced severe privation and abuse in the first six y e a r s of his life while in the custody of his alcoholic, absentee mother. He s u ffe r e d physical torment, sexual molestation, and repeated rape during his s u b s e q u e n t years in foster care." Wiggins, 539 U.S. at 535. Wiggins was at t im e s homeless and had "diminished mental capacities." Id. The Supreme C o u r t explained that Wiggins had the "kind of troubled history" it has "declared r e le v a n t to assessing a defendant's moral culpability." Id. Concluding that the a v a ila b le mitigating evidence "`might well have influenced the jury's appraisal' o f Wiggins' moral culpability," the Supreme Court held that he had shown S tr ic k la n d prejudice. Id. at 538 (quoting Williams, 529 U.S. at 398).

As previously noted, Gray also contends that counsel's failure to request a courtappointed expert to assist in presenting the case in mitigation constitutes ineffective assistance. However, in the proceedings below, the district court authorized funds to have an expert conduct further neuropsychological testing. Gray's counsel had Dr. O'Brien conduct the tests, and his conclusions demonstrate that Gray cannot show prejudice based on counsel's failure to request a court-appointed expert.

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No. 09-70021 S im ila r ly , in Williams, the Supreme Court described Williams' childhood a s "nightmarish." 529 U.S. at 395. "Williams' parents had been imprisoned for t h e criminal neglect of Williams and his siblings." Id. "Williams had been s e v e r e ly and repeatedly beaten by his father [and] had been committed to the c u s t o d y of the social services bureau for two years during his parents' in c a r c e r a t io n (including one stint in an abusive foster home)." Id. Additionally, " W illia m s was borderline mentally retarded and did not advance beyond sixth g r a d e in school." Id. (internal quotation marks and citation omitted). There w e r e prison records available demonstrating that Williams had assisted in c r a c k in g a drug ring in prison and returned a guard's missing wallet. Id. at 396. In light of all the available mitigating evidence, the Supreme Court concluded t h a t Williams had shown a reasonable probability of a different outcome at s e n te n c in g . Id. at 399. In the instant case, there is no allegation of abuse. Indeed, in the

p r o ffe r e d mental health records, Gray's mother describes his childhood as " n o r m a l." Moreover, Gray cannot show prejudice because much of the new e v id e n c e is "double edged" in that it could also be interpreted as aggravating. See Dowthitt v. Johnson, 230 F.3d 733, 745 (5th Cir. 2000) (holding that p e t it io n e r could not demonstrate Strickland prejudice because the evidence was " d o u b le edged in nature"). For instance, Dr. Stanley described Gray as

" m a r k e d ly antisocial" and "disturbed." The records list Gray's diagnosis as " C o n d u c t Disorder, Soc. Aggressive" and provide evidence that he hit a girl in t h e face in the classroom. We are not persuaded that Gray's new evidence has a reasonable probability of influencing the jury's decision regarding his moral c u lp a b ilit y . W e recognize that reweighing the evidence is a difficult inquiry. See T u c k e r v. Johnson, 242 F.3d 617, 623 (5th Cir. 2001). Nonetheless, we are not

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No. 09-70021 p e r s u a d e d that the Mississippi Supreme Court's conclusion that the newly p r o ffe r e d evidence does not demonstrate prejudice is unreasonable. IV . C O N C L U S IO N

A c c o r d in g ly , for the above reasons, the district court's judgment is A F F IR M E D .

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