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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-51199
_______________
KIA LEVOY JOHNSON,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
July 31, 2002
Before JONES, SMITH, and
behind the counter. The police were able to
EMILIO M. GARZA, Circuit Judges.
obtain a surveillance tape that showed the per-
petrator and showed the victim trying to reach
JERRY E. SMITH, Circuit Judge:
for a telephone for forty-five minutes after he
was shot.
I.
In 1995, Kia Johnson was convicted of the
The next day, Ray Thompson, a long-time
capital murder of William Rains and sentenced
acquiantance of Johnson's, called police when
to death. He now seeks a certificate of appeal-
he recognized Johnson as the person on the
ability ("COA") to challenge the death
tape when it was shown on television. The
sentence. We deny a COA.
police went to Thompson's home and showed
him the full videotape, whereupon he again
A security guard at a convenience store dis-
identified Johnson.
covered the body of William Rains, a clerk,

A warrant was issued for Johnson's arrest;
15, 2001) (considering and rejecting the
he soon was located in the custody of police,
ineffective assistance claim now under
having been arrested on an unrelated charge.
appeal).1 We must therefore consider
A police officer identified Johnson as the man
Johnson's claim on the merits.
in the tape because he was wearing the same
distinctive clothing. Henry Wright, another of
IV.
Johnson's acquiantances, also identified him as
A.
the man portrayed in the tape.
To obtain a COA, Johnson must make a
"substantial showing of the denial of a
II.
constitutional right." 28 U.S.C. § 2253(c)
During the penalty phase of the trial,
(1994). On appeal, such a showing requires
Johnson's attorney called the victim's father,
proof that "reasonable jurists would find the
Julian Rains, as a witness. Rains testified to
district court's assessment of the constitutional
the admirable qualities of his deceased son and
claims debatable or wrong." Slack v.
stated that "I want the guilty person punished,
McDaniel, 529 U.S. 473, 484 (2000).
whether it be Mr. Johnson or whomever it may
be because I don't think my son could rest un-
Because Johnson's ineffective assistance
til his murderer is taken care of."
claim was previously considered and rejected
by a state court, it is also governed by the
Johnson's conviction was upheld by the
Anti-Terrorism and Effective Death Penalty
Texas Court of Criminal Appeals in 1996. In
Act of 1996 ("AEDPA"), under which a state
1997 and 1998, the Court of Criminal Appeals
court decision will be overturned in a habeas
rejected two habeas corpus petitions. In No-
proceeding only if it is "contrary to, or
vember 2001, Johnson's habeas corpus
involved an unreasonable application of,
petition and request for COA were rejected in
clearly established Federal law, as determined
federal district court.
by the Supreme Court of the United States."
28 U.S.C. § 2254(d)(1) (1994).2
Johnson's petition to the district court cited
a variety of grounds. He now appeals on only
one of these: The claim that his attorney's
calling of the victim's father as a witness at the
punishment phase of the trial, and the
substance of his questioning of that witness,
1 The state further contends that Johnson did not
constituted ineffective assistance of counsel.
argue to the district court that Julian Rains's tes-
timony constitutes grounds for an ineffective as-
III.
sistance claim because it allegedly encouraged the
The state argues that Johnson's ineffective
jury to impose a sentence of death. Johnson, how-
assistance claim is barred because he failed to
ever, did in fact make this argument in one of his
briefs to the district court.
raise it in the district court. To the contrary,
the record and district court opinion show un-
2 Johnson's case is governed by AEDPA
equivocally that the claim was in fact raised
because his habeas petition was filed after April
and considered. See Johnson v. Cockrell, No.
24, 1996. See Lindh v. Murphy, 521 U.S. 320,
SA-98-CA-133-EP, at 43-48 (W.D. Tex. Nov.
324-26 (1997) (describing time-frame for
application of AEDPA).
2

B.
Court recently has emphasized that for Cronic
To sustain a claim of inadequate assistance
to apply, "the attorney's failure must be
of counsel, a defendant usually must meet the
complete." Bell v. Cone, 122 S. Ct. 1843,
standards of Strickland v. Washington, 466
1851 (2002). "For purposes of distinguishing
U.S. 668 (1984), which requires proof that
between the rule of Strickland and that of
(1) "counsel's performance was deficient" and
Cronic," the Court held that a case does not
(2) "the deficient performance prejudiced the
come under Cronic merely because counsel
defense" so gravely as to "deprive the
failed to "oppose the prosecution . . . at
defendant of a fair trial, a trial whose result is
specific points" in the trial. Id. It is not
reliable." Id. at 687. "There are, however,
enough for the defendant to show mere "shod-
circumstances that are so likely to prejudice
dy representation" or to prove the existence of
the accused that the cost of litigating their
"errors, omissions, or strategic blunders" by
effect in a particular case is unjustified."
counsel. Jackson, 150 F.3d at 525. "[B]ad
United States v. Cronic, 466 U.S. 648, 658
lawyering, regardless of how bad, does not
(1984). In such cases, where the defendant is
support the per se presumption of prejudice."
constructively denied assistance of counsel,
Id. (citations omitted).4
prejudice is automatically assumed and need
not be proven. Id. at 658-62.
Johnson's attorney undeniably rendered
"meaningful assistance" to his client
Johnson argues that his counsel's
throughout the guilt and penalty phases. Id.
examination of Julian Rains was so egregious
Counsel's examination of Julian Rains
an error that it falls within the narrow Cronic
apparently was part of a strategy intended to
exception to the usual requirements imposed
elicit some statement indicating that the
on ineffective assistance claims. This
defendant should be spared the death penalty.
contention is without merit.
This is indicated, for example, by the fact that
Johnson's attorney asked Rains whether he
"`A constructive denial of counsel occurs
was "a religious man," which implies that
. . . in only a very narrow spectrum of cases
counsel may have been seeking to elicit a plea
where the circumstances leading to counsel's
that Johnson be spared for religious reasons.
ineffectiveness are so egregious that the
Counsel cited Rains's testimony in his closing
defendant was in effect denied any meaningful
argument asking that Johnson be spared the
assistance at all.'" Jackson v. Johnson, 150
death penalty. Although this strategy may
F.3d 520, 525 (5th Cir. 1998) (quoting Chil-
have been mistaken, it at most constitutes a
dress v. Johnson, 103 F.3d 1221, 1229 (5th
Cir. 1997)) (emphasis added).3 The Supreme
3(...continued)
or in any way exercise judgment on behalf of the
3 Cf. Burdine v. Johnson, 262 F.3d 336, 349
client"), cert. denied, 122 S. Ct. 2347 (2002).
(5th Cir. 2001) (en banc) (upholding a Cronic
Johnson's counsel "exercise[d] judgment" on be-
claim in a case where the defendant's lawyer was
half of his client throughout, and he was certainly
asleep during parts of the trial because "[u]ncon-
far superior to having "no counsel at all." Id.
scious counsel equates to no counsel at all. Un-
conscious counsel does not analyze, object, listen
4 See also Gochicoa v. Johnson, 238 F.3d 278,
(continued...)
284-85 (5th Cir. 2001) (same).
3

"strategic blunder" or "bad lawyering" of
Fretwell, 506 U.S. 364, 369 (1993)).
precisely the sort that under our precedents is
insufficient to support a Cronic claim. Id.
We agree with the district court that in light
Likewise, counsel's performance fell far short
of the overwhelming evidence against Johnson
of the "complete" failure required by the
and his extensive prior criminal record, of
Supreme Court. Bell, 122 S. Ct. at 1851.
which the jury was made aware,6 there was no
prejudice, even if we assume, arguendo, that
C.
counsel was ineffective. Given the seriousness
Johnson's ineffective assistance claim must
of his crime and his record, it is highly likely
therefore be analyzed under the standards of
that Johnson would have been sentenced to
Washington, in which the Court stressed that
death even in the absence of Rains's testimony.
"[j]udicial scrutiny of counsel's performance
must be highly deferential" and that "every ef-
Although Johnson describes Rains's
fort [must] be made to eliminate the distorting
testimony as a "request for the death penalty,"
effects of hindsight." Washington, 466 U.S. at
in fact Rains asked only that his son's killer be
689. Thus, courts must "indulge a strong pre-
"taken care of," which suggests that he might
sumption that counsel's conduct falls within
have been satisfied with the lesser punishment
the wide range of reasonable professional as-
of life imprisonment. At the very least, this
sistance." Id. In applying Washington, "we
highly equivocal statement and the rest of
will not find ineffective assistance of counsel
Rains's testimony certainly fell far short of
merely because we disagree with counsel's tri-
prejudicing the defendant's case to such an
al strategy." Crane v. Johnson, 178 F.3d 309,
extent that it "rendered sentencing
312 (5th Cir. 1999).
fundamentally unfair or unreliable." Id.
(citations omitted).
Even if counsel is proven deficient, a
Washington claim cannot be sustained without
D.
strong proof of prejudice. To prove such pre-
Because we follow the district court in
judice, Johnson must show "a reasonable prob-
holding that there was no prejudice, we need
ability that the result of the proceedings would
not decide whether Johnson's attorney
have been different but for counsel's
performed so poorly as to overcome "the
unprofessional errors." Crane, 178 F.3d at
strong presumption that counsel's conduct
312 (citing Washington, 466 U.S. at 694).
falls within the wide range of reasonable pro-
"[T]he mere possibility of a different outcome
fessional assistance." Washington, 466 U.S. at
is not sufficient to prevail on the prejudice
689. It seems probable, however, that "under
prong." Id.5 "Rather, the defendant must
the circumstances, the challenged action might
demonstrate that the prejudice rendered
be considered sound trial strategy." Id.
sentencing `fundament ally unfair or
unreliable.'" Id. (quoting Lockhart v.
Given the egregious nature of Johnson's of-
fense and his criminal history, defense counsel
legitimately might have concluded that Rains's
5 See also Washington, 466 U.S. at 693 (noting
that "[i]t is not enough for the defendant to show
that the errors had some conceivable effect on the
6 Johnson had multiple felony convictions, in-
outcome of the proceeding").
cluding for aggravated robbery and burglary.
4

testimony was unlikely to increase significantly
petitioner's trial counsel calling the victim's
his client's already high chance of receiving the
father to the stand . . . the jury would have
death penalty. The possibility of eliciting a
rendered a different verdict on either of the
statement from the victim's father opposing
special issues before it") (emphasis added).
imposition of the death penalty therefore might
have justified the attendant risks of calling
In view of the overwhelming nature of the
Rains to the stand. In retrospect, this strategy
evidence against JohnsonSSwho was
seems to have failed; but in a Washington
videotaped in the act of committing the crime
analysis, "every effort [must] be made to elim-
and then was identified by three witnesses as
inate the distorting effects of hindsight." Id.
the man in the videotapeSSthere is no
at 689.
reasonable chance that the jury retained
enough "residual doubt" concerning guilt that
E.
it might have decided to forego the death
Johnson contends that the district court
penalty but for defense counsel's alleged errors
erred by allegedly failing to take account of the
in his questioning of Rains. Certainly, there is
trial evidence in its evaluation of his claim of
no reason to believe that any potential
ineffective assistance. Johnson asserts that the
prejudice in this regard was serious enough to
evidence against him was sufficiently weak
"render . . . sentencing fundamentally unfair or
that, absent counsel's ineffective performance
unreliable." Crane, 178 F.3d at 312.
in the penalty phase, the jury's "residual
doubt" regarding guilt or innocence would
The application for COA is DENIED.
have led it to forego the death penalty. Moore
v. Johnson, 194 F.3d 586, 619 (5th Cir. 1999).
According to Johnson, the court erred in sup-
posedly failing to consider both the guilt and
punishment phases of the trial in determining
"whether there is a reasonable probability that,
but for counsel's deficient performance, the
jury might have answered the special issues
put before it differently." Id.
"Residual doubt" left over from the guilt
phase of a capital murder trial can have a sub-
stantial impact on whether that same jury im-
poses a death sentence during the punishment
phase. Lockhart v. McCree, 476 U.S. 162,
181 (1986). The district court did indeed con-
sider the full record, however. See Johnson v.
Cockrell, No. SA-98-CA-133-EP, at 46-47
(W.D. Tex. Nov. 15, 2001) (holding that
"[h]aving reviewed the entire trial record
carefully, this Court concludes that there is no
reasonable probability that but for the
5