Texas Department of Criminal Justice

Texas Attorney General Media Advisory

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Douglas Alan Roberts, who is scheduled to be executed after 6 p.m. Wednesday, April 20, 2005.

FACTS OF THE CRIME

On May 18, 1996, Douglas Alan Roberts stole a car from a woman at knifepoint at a San Antonio convenience store. Fearing that the car had been reported stolen, Roberts later drove into an apartment complex parking lot and abducted Jerry Velez in his own car at knifepoint. Roberts robbed Velez of his cash and ordered him to drive him out of San Antonio. Velez complied and drove Roberts out of the city.

After pulling onto a desolate rural road in Kendall County, Roberts ordered Velez out of the car at knifepoint. Velez lunged at Roberts and landed on top of the man’s knife. Roberts stated he repeatedly stabbed Velez, then ran over the victim with his car. The State’s evidence proved Velez was run over, perhaps as many as three times.

Following the killing, Roberts drove to Austin, then called 911 and told the dispatcher he kidnaped and killed Velez. In a videotaped interview with police, Roberts admitted kidnaping and murdering Velez.

A large bowie-like knife used in the killing was recovered from the front seat of Velez’s car.

An autopsy determined that Velez was stabbed five times and that his ribs were fractured or broken, and his right lung was punctured. Velez also suffered “blunt trauma” to his brain. The Bexar County medical examiner stated the cause of Velez’s death was a combination of the stab wounds and trauma.

PROCEDURAL HISTORY

05/18/96 -- Roberts murders Jerry Velez during the course of a robbery and kidnaping.
01/08/97 -- Roberts is convicted of capital murder.
01/09/97 -- A Kendall County jury answered the special issues resulting in a death sentence.
06/17/97 -- Roberts filed a brief raising four points of error.
05/13/98 -- The Texas Court of Criminal Appeals affirmed Roberts’conviction and sentence.
07/20/98 -- Roberts files a writ application raising four claims.
11/20/98 -- A district judge recommended that habeas relief be denied.
12/14/98 -- The U.S. Supreme Court denied certiorari review of the Texas court’s opinion on direct appeal.
01/27/99 -- The Texas Court of Criminal Appeals denied relief.
01/21/00 -- Roberts filed a federal habeas petition.
10/22/03 -- A San Antonio federal court denied relief and granted a certificate of appealability COA) on two issues.
03/26/03 -- Roberts asked the 5th Circuit Court of Appeals to expand the issues on which a COA was granted.
01/09/04 -- The 5th Circuit granted a COA on two additional issues.
08/16/04 -- The 5th Circuit affirmed the lower court’s denial of habeas relief.
09/30/04 -- A Kendall County state district court ordered Roberts’ execution for April 20, 2005.
12/22/04 -- Roberts petitioned the U.S. Supreme Court for certiorari review and asked for a stay of execution.
04/04/05 -- The U.S. Supreme Court denied certiorari review and the stay request.
01/18/05 -- The trial court reset Roberts’ execution for April 20, 2005.

ProDeathPenalty.com

Douglas Roberts was sentenced to death for the kidnapping, robbery and murder of Jerry Valez. Velez was abducted at knifepoint and forced to drive his car out of San Antonio on Interstate 10. When they arrived in Kendall County, Roberts told Velez to turn off onto a road near Highway 46 and stop the car. Roberts told Velez to give him his shirt, and Velez lunged at him. Roberts stabbed Velez seven times, then ran over Velez's body when fleeing the scene in the victim's car. Roberts then drove to Austin and called 911 from a pay phone, telling the operator he had killed a man. Roberts directed his attorney that he wanted to be convicted and sentenced to death and that he should dismiss any potential jurors who expressed any reservations about assessing the death penalty and not to fight the death penalty or ask for a life sentence during closing arguments not to present any mitigating evidence. Then Roberts appealed on the grounds that his attorney had provided ineffective assistance.

Texas Execution Information Center by David Carson.

Douglas Alan Roberts, 42, was executed by lethal injection on 20 April 2005 in Huntsville, Texas for the kidnapping, robbery, and murder of a 40-year-old man.

On 18 May 1996, Roberts, then 33, robbed a San Antonio convenience store and stole a customer's car at knifepoint. He drove into an apartment complex parking lot and pulled a knife on Jerry Velez, who was in his car. Roberts got in the vehicle, robbed Velez of his cash, and ordered Velez to drive out of town. When they were on a rural road, Roberts instructed Velez to stop the car and get out. Velez then lunged at Roberts. Roberts stabbed Velez repeatedly. He then ran over Velez with his own car several times.

After the killing, Roberts drove to Austin. He stopped at a pay phone, called 911, and reported that he had killed a man. He waited to be arrested, then gave a videotaped confession. A Bowie knife was recovered from the front seat of Velez's car. An autopsy determined that Velez was stabbed five times. He also suffered blunt trauma to his brain.

At his trial, Roberts instructed his attorney to call no defense witnesses and to pick a jury that favored the death penalty. Roberts' only prior conviction as an adult was for credit card fraud in 1983. According to one source, he also had a juvenile conviction for aggravated robbery.

A jury convicted Roberts of capital murder in January 1997. The Texas Court of Criminal Appeals affirmed the conviction and sentence in May 1998. All of his subsequent appeals in state and federal court were denied.

In an interview from death row, Roberts said that he was high on cocaine when he killed Velez. "I was stoned out of my mind," he said. Lost in an unfamiliar place, he saw Velez and thought, "this guy is going to take me out of the city. So I kidnapped him and his vehicle. "I guess he decided at the last minute he didn't want to be stranded, or thought he could overpower me," Roberts said.

Roberts called police after the drug high wore off, and waited to be picked up because he realized that drugs had complete control over him. "This was someone I'd gotten off the street. Who was it going to be the next time? A little woman? A little kid?" Roberts said that he first tried cocaine at age 10.

As his execution date approached, Roberts asked his lawyers not to file any last-minute appeals on his behalf. He told a reporter that the had no desire to die, but he saw his execution as a way to end the loneliness and isolation of death row, which he described as "23 hours a day in a cement box." "I killed the guy they said I killed," he said. "There's no question about that ... So if you've got to spend the rest of your life like this, and if you're like me and know the Lord, the today's a good day to go."

Roberts was upbeat and animated as the execution procedure began. "I've been hanging around this Popsicle stand way too long, I want to tell you all," Roberts said in his last statement. "When I die, bury me deep, lay two speakers at my feet, put some headphones on my head, and rock 'n' roll me when I'm dead." He then added, "I'll see you in Heaven some day." He then told the warden he was ready, and the lethal injection was administered. As the drugs took effect, Roberts smiled and mouthed "I love you all" to his friends. He then said "I've got to go," and took his final breath. He was pronounced dead at 6:21 p.m.

National Coalition to Abolish the Death Penalty

Douglas Alan Roberts - Texas - April 20, 2005 6:00 PM CST

The state of Texas is scheduled to execute Douglas Alan Roberts, a white man, April 20 for the 1996 murder of Jerry Velez in Kendall County. Roberts stabbed Velez during a confrontation after he had stolen Velez’s car.

Roberts committed the crime while using crack cocaine. After the effects of the cocaine wore off, he dialed 911 from a pay phone reporting what he had done and disclosing his location. He waited to be arrested by a responding officer.

Roberts told his attorney that he wanted to be executed, rather than spend the rest of his life in prison. The trial that followed was one of the shortest death penalty trials in the modern era lasting two to three days including jury selection. He has a strong ineffective assistance of counsel claim. His trial attorney presented no mitigating arguments and no competency hearing was held. Roberts and his attorney deliberately sought out pro-death penalty jurors in an effort to assure his death sentence.

When the jury came back deadlocked, the judge, instead of ordering a sentence of life imprisonment, instructed the jury to continue deliberating in accord with Roberts’ wishes.

The problem of ineffective assistance of counsel highlights one of the most common and difficult flaws with the death penalty system. More than 90 percent of persons on death row were not able to hire their own attorney. Frequently when attorneys are appointed to defendants they are ill-equipped to give their client quality or even competent legal representation. Roberts’ trial attorney assisting in seeking out a death sentence and the judge’s behavior make a mockery of the justice system.

Please write Governor Perry and the Board of Pardons and Paroles protesting a death penalty system which would allow such a blatant miscarriage of justice to take place.

Houston Chronicle

"Texas inmate who acknowledged murder executed," by Michael Graczyk. (AP April 20, 2005)."

A convicted murderer who said he first tried cocaine at age 10 was executed Wednesday evening for abducting and fatally stabbing a San Antonio man whose car he stole nine years ago while he was high.

Douglas Roberts, 42, was upbeat and animated in the seconds before the lethal drugs were administered. "I've been hanging around this popsicle stand way too long," he said when asked if he had a final statement. "I want to tell you all. "When I die, bury me deep, lay two speakers at my feet, put some headphones on my head and rock 'n' roll me when I'm dead." "I'll see you in heaven some day," he added.

Roberts, 42, was smiling and mouthing "I love you all" to friends watching through a window nearby when the drugs began to take effect. He gasped and sputtered. He was pronounced dead eight minutes later, at 6:21 p.m. He was the fifth Texas prisoner put to death this year.

Roberts' appeals were rejected earlier this month by the U.S. Supreme Court, and he asked his lawyers not to file last-minute actions to keep him alive. "Why go through the trouble for nothing?" he told The Associated Press last week. "The appeals have run their course through the system." He insisted he had no desire to die but saw his execution as a way to end the loneliness and isolation of death row, which he described as "23 hours a day in a cement box." "So if you've got to spend the rest of your life like this, and if you're like me and know the Lord, then today's a good day to go," he said.

Roberts was convicted of killing Jerry Velez, 40, who was abducted in San Antonio in the early morning of May 18, 1996. Roberts, who worked as a machinist and lived in the Austin suburb of Round Rock, had just robbed a San Antonio convenience store and stole a customer's car at knifepoint. Lost in an unfamiliar place and "stoned out of my mind," Roberts said he spotted Velez walking to a row of cars parked outside an apartment complex. "I'm thinking: This guy is going to take me out of the city," said Roberts, who was armed with a Bowie knife. "So I kidnapped him and his vehicle." The pair drove to a dirt road in a remote area of Kendall County, about 30 miles northwest of San Antonio, where Roberts said he and Velez scuffled. "I guess he decided at the last minute he didn't want to be stranded or thought he could overpower me," Roberts said.

An autopsy later showed Velez was stabbed five times, had ribs broken, a lung punctured and head injuries. Evidence at Roberts' trial showed the victim had been run over with a car as many as three times.

Roberts drove back toward Austin where he called police from a pay phone and told a dispatcher about the slaying, then waited for authorities to pick him up. "I knew drugs got to the point where they were controlling you and you were not controlling them," he said. "This was someone I'd gotten off the street. Who was it going to be the next time? A little woman? A little kid? "I killed the guy that they said I killed," Roberts said. "There's no question about that."

Instead of the manslaughter or reduced murder charge he expected, he was indicted for capital murder. At his trial, he told his attorney to call no defense witnesses and pick a jury that favored the death penalty. His jury deliberated two hours before convicting him and the following day decided he should be put to death.

In appeals that were rejected earlier by the courts, lawyers said Roberts had a difficult childhood and suffered from depression and possible brain damage. Roberts said his father was an alcoholic.

Roberts was to have shared the death chamber Wednesday with another condemned prisoner, Milton Mathis, for a rare back-to-back execution. Mathis, however, won a reprieve Tuesday from the Texas Court of Criminal Appeals. At least four Texas inmates have execution dates in May, beginning with Lonnie Pursley, set to die May 3 for the 1997 robbery and beating death of a man in Polk County in East Texas.

Reuters News

"Texas Set for Two Executions Wednesday Night," by Jeff Franks. (April 18, 2005)

Houston, Texas (Reuters) - Texas, the leading U.S. death penalty state, is set to carry out a rare double execution on Wednesday night, when two men convicted of separate murders will receive lethal injections. Barring intervention by the courts or Gov. Rick Perry, Douglas Roberts, 42, will be put to death first, followed quickly by Milton Mathis, 26, officials said on Monday.

Originally, they said Mathis would go first but later said that was incorrect because Roberts was sent to prison before Mathis. "Witnesses to the first execution will be escorted out and witnesses to the second will be brought in," said prison spokeswoman Michelle Lyons. "All the medical supplies and bedding will be switched. When we proceed will depend, as always, on what is working in the courts," she said.

Texas leads the nation with 340 executions since resuming capital punishment in 1982 after the lifting of a death penalty by the U.S. Supreme Court. It was the last state to kill two people on the same night. That took place on Aug. 9, 2000 when Brian Roberson, 36 and Oliver Cruz, 33, died 30 minutes apart in the Texas death chamber, which is at a state prison in Huntsville, 75 miles north of Houston. Texas also did it on Jan. 31, 1995 and June 4, 1997. Before that, it had not happened in the state since Sept. 5, 1951.

The most known executions in Texas in one day took place on Feb. 8, 1924 when the state used its new electric chair to put five people to death.

Lyons said Mathis and Roberts would be held in separate cells near the death chamber and would have separate chaplains to assist them in the hours leading up to execution. Shortly after 6 p.m. CDT on Wednesday, Roberts is scheduled to be strapped into the lone gurney in the death chamber and injected with a lethal mix of chemicals. His body will be removed; then officials will change the needles and tubes used to inject the chemicals, change the gurney sheets and bring in Mathis. "We basically treat it as two separate events that happen to happen on the same evening," said Lyons.

Having two executions on the same day is just a coincidence because the dates are set by the judges who preside over the criminal cases of each inmate. The judges usually do not consult with each other and their only scheduling criteria is that no executions are performed around Christmas or Easter, officials said.

Mathis was condemned for a 1998 shooting spree at a reputed drug den near Houston that left two people dead and another paralyzed. Roberts was sentenced to death for kidnapping and stabbing a San Antonio man to death in 1996. They would be the fifth and sixth people executed in Texas this year.

Dallas Morning News

"Texas executes man for abduction-slaying." (08:06 PM CDT on Wednesday, April 20, 2005)

HUNTSVILLE, Texas (AP) -- A convicted murderer who said he first tried cocaine at age 10 was executed Wednesday evening for abducting and fatally stabbing a San Antonio man whose car he stole nine years ago while he was high.

Douglas Roberts, 42, was upbeat and animated in the seconds before the lethal drugs were administered. "I've been hanging around this popsicle stand way too long," he said when asked if he had a final statement. "I want to tell you all. "When I die, bury me deep, lay two speakers at my feet, put some headphones on my head and rock 'n' roll me when I'm dead." "I'll see you in heaven some day," he added. Mr. Roberts, 42, was pronounced dead eight minutes later, at 6:21 p.m. He was the fifth Texas prisoner put to death this year.

Mr. Roberts' appeals were rejected this month by the U.S. Supreme Court, and he asked his lawyers not to file last-minute actions to keep him alive. "Why go through the trouble for nothing?" he said last week. "The appeals have run their course through the system." He insisted he had no desire to die but saw his execution as a way to end the loneliness and isolation of death row.

Mr. Roberts was convicted of killing Jerry Velez, 40, who was abducted in San Antonio early on May 18, 1996.

Mr. Roberts, who worked as a machinist and lived in the Austin suburb of Round Rock, had just robbed a San Antonio convenience store and stolen a customer's car at knifepoint. Lost in an unfamiliar place and "stoned out of my mind," he said he spotted Mr. Velez walking to a row of cars parked outside an apartment complex.

The pair drove to a dirt road in a remote area of Kendall County, about 30 miles northwest of San Antonio, where Mr. Roberts said he and Mr. Velez scuffled, and he killed Mr. Velez.

Denton Record Chronicle

"Texas inmate looking forward to death," by Michael Graczyk. (AP 4/20/2005)

Convicted Texas inmate Douglas Roberts insisted he had no desire to die but saw his execution Wednesday evening as a way to end the loneliness and isolation of death row. Roberts, 42, faced lethal injection for the 1996 abduction and fatal stabbing of a San Antonio man whose car he stole.

The U.S. Supreme Court earlier this month refused to review Roberts' case and he instructed his lawyers to not file any additional appeals to try to keep him from becoming the fifth Texas prisoner executed this year. "If I have to live my life in prison, let's make today that last day," Roberts said in an interview last week. "It's not a question of wanting to die. It's a question of not wanting to live in this oppressive prison system. "So if you've got to spend the rest of your life like this, and if you're like me and know the Lord, then today's a good day to go."

Roberts, who blamed a cocaine addiction for his slaying nine years ago of Jerry Velez, 40, initially was to have shared the death chamber Wednesday evening with another condemned prisoner, Milton Mathis, for a rare back-to-back execution. Mathis, however, won a reprieve Tuesday from the Texas Court of Criminal Appeals after his lawyers argued the 26-year-old from Houston may be mentally retarded and ineligible for the death penalty. The Supreme Court has barred the execution of the mentally retarded. Mathis was convicted of killing two men at a Houston crack house in 1998. The appeals court returned the case to his Fort Bend County trial court for additional review.

Roberts, who was living in the Austin suburb of Round Rock, said he was lost in San Antonio and driving car he had just stolen in a robbery when he spotted Velez outside the apartment complex where Velez lived. Roberts pulled out a knife and demanded Velez accompany him out of town. They headed about 30 miles toward Boerne in Kendall County, where Roberts said he stopped on a dirt road "away from everything."

"I was stoned out of my mind," he said. "I guess he decided he didn't want to be stranded or thought he could overpower me." The men scuffled and Velez was stabbed repeatedly, then run over with his own car. When his cocaine high subsided, Roberts phoned police to claim responsibility. "I knew drugs got to the point where they were controlling you and you were not controlling them," he said. "I wasn't going to go through my life looking over my shoulder."

He thought he'd be charged with manslaughter or a reduced murder charge. Instead, he was indicted for capital murder. "Surprised don't even begin to cover that," he said.

Over the objections of his lawyer, Roberts at his trial demanded jurors who favored the death penalty and asked that no witnesses be called in his defense. A psychiatrist determined Roberts was competent to make those decisions. "I killed the guy they said I killed," Roberts said last week. "There's no question about that. The police didn't come looking for me. I called them. I said: 'Here I am. Come get me.'"

Roberts, who described life on death row as "23 hours a day in a cement box," grew up in Houston. He said he first tried cocaine about the age of 10 to deal with an abusive home environment. "I believe in God," Roberts said. "I don't have no fear. I have nothing but love in my heart... I know there's a place in heaven for me and come Wednesday night, I'm going to be there."

At least four more Texas inmates have execution dates for May.

CNNNews

"Murderer upbeat, joking in seconds before execution; 'Put some headphones on my head and rock 'n' roll me when I'm dead'" (Thursday, April 21, 2005 Posted: 0715 GMT)

HUNTSVILLE, Texas (AP) -- A convicted murderer who said he first tried cocaine at the age of 10 was executed Wednesday for abducting and fatally stabbing a man during a drug-induced haze nine years ago.

Douglas Roberts, 42, was upbeat and animated in the seconds before the lethal drugs were administered. "I've been hanging around this popsicle stand way too long," he said. "When I die, bury me deep, lay two speakers at my feet, put some headphones on my head and rock 'n' roll me when I'm dead." "I'll see you in heaven some day," he added.

At his trial, Roberts told his attorney to call no defense witnesses and pick a jury that favored the death penalty. His jury deliberated two hours before convicting him and the following day decided he should be put to death.

Roberts was convicted of killing Jerry Velez, 40, who was abducted in San Antonio in May 1996. Roberts, a machinist, had just robbed a San Antonio convenience store and stole a customer's car at knifepoint. Lost in an unfamiliar place and "stoned out of my mind," Roberts said he spotted Velez walking to a row of cars parked outside an apartment complex. The pair drove to a dirt road in a remote area about 30 miles northwest of San Antonio, where Roberts and Velez scuffled.

Roberts was armed with a Bowie knife, and an autopsy showed Velez was stabbed five times, had ribs broken, a lung punctured and head injuries. Evidence at Roberts' trial showed the victim had been run over with a car as many as three times. Roberts drove back toward Austin where he called police from a pay phone and told a dispatcher about the slaying, then waited for authorities to pick him up.

Roberts was to have shared the death chamber Wednesday with another condemned prisoner, Milton Mathis, for a rare back-to-back execution. But Mathis won a reprieve Tuesday from the Texas Court of Criminal Appeals. Roberts was the fifth Texas prisoner put to death this year.

Roberts v. Dretke, 381 F.3d 491 (5th Cir. 2004)(Habeas)

Background: State prisoner who was convicted of capital murder petitioned for writ of habeas corpus. The United States District Court for the Western District of Texas, Edward C. Prado, J., denied the writ. Petitioner sought and was granted, 356 F.3d 632, an expanded certificate of appealability (COA).

Holdings: The Court of Appeals, Emilio M. Garza, Circuit Judge, held that:
(1) state habeas court's conclusion that petitioner was not entitled to a competency hearing was neither unreasonable nor contrary to Supreme Court precedent so as to warrant federal habeas relief on due process grounds;
(2) state habeas court's conclusion that performance of petitioner's appointed defense counsel was not deficient, as required to establish ineffective assistance claim, for failure to further investigate petitioner's medical history, was reasonable and not contrary to Supreme Court precedent, and thus did not warrant federal habeas relief;
(3) state habeas court's conclusion that trial strategy of petitioner's appointed defense counsel did not amount to deficient performance was reasonable and not contrary to Supreme Court precedent, and thus did not warrant federal habeas relief;
(4) petitioner failed to establish prejudice, as required to establish ineffective assistance of counsel claim, from failure of his trial counsel to further investigate his medical history so as to provide basis for evidentiary hearing as to his competence to stand trial and to direct trial strategy; and
(5) petitioner was not entitled to an evidentiary hearing in the district court on his competence to stand trial in state court. Affirmed.

EMILIO M. GARZA, Circuit Judge:
Douglas Alan Roberts appeals the district court's denial of his petition for habeas relief. He challenges both his Texas state capital murder conviction and his sentence. The district court denied relief on all grounds in Roberts's petition, but granted a COA as to the questions 1) whether the trial court acted reasonably in not sua sponte holding a competency hearing, and 2) whether the federal district court erred in not granting an evidentiary hearing, discovery, and expert assistance in connection with the federal habeas proceedings. We expanded the scope of the COA to include the questions whether Roberts's trial attorney rendered ineffective assistance of counsel by 1) failing to properly develop evidence confirming or refuting that Roberts was mentally ill, and 2) failing to make adequate use of his court-appointed psychiatrist. We find that the district court correctly concluded that the state habeas court's denial of Roberts's habeas claims was not unreasonable. We further find that the district court did not abuse its discretion by refusing to hold an evidentiary hearing. We thus AFFIRM the district court's ruling.

While high on crack-cocaine Roberts killed Jerry Lewis Vasquez. Within a few hours of the killing, after he sobered up, Roberts alerted local police of his crime and confessed to the killing. Roberts was then charged with the murder of Vasquez. Texas appointed Roberts counsel to represent him in his capital trial. Roberts immediately instructed his trial counsel, Steven Pickell, to steer the trial towards the imposition of the death penalty. To no avail, Pickell tried to discourage Roberts from this course. However, consistent with Roberts's instructions, Pickell waived voir dire, chose jury members who favored the death penalty, did not interview family members before trial, called no witnesses during the guilt/innocence phase of the trial, called no witnesses during the punishment phase, did not request a jury instruction on parole laws, and made no argument in favor of a life sentence. Pickell spent a total of fifty hours preparing for Roberts's trial. Consequently, neither the conviction nor the punishment were contested in any meaningful way.

Apparently concerned that Roberts may not have been right of mind, Pickell requested, and Texas granted, funding for a psychiatrist, Dr. Michael Arambula, M.D., to analyze Roberts's mental state. A short time prior to trial, Dr. Arambula interviewed Roberts for two hours. Based on that interview, police reports about Roberts, and the victim's autopsy report Dr. Arambula produced a psychiatric evaluation. In making this evaluation, Dr. Arambula did not review any of Roberts's medical records, including records relating to Roberts's psychiatric hospitalization that occurred after a recent "suicide ideation." Pickell did not collect these records and Dr. Arambula did not request them. Pickell also did not inform Dr. Arambula about a head injury that Roberts suffered as a child. Neither Pickell nor Dr. Arambula spoke to any of Roberts's family members or former treating physicians about his medical and psychiatric history.

Dr. Arambula's report notes that Roberts admitted that he had previously "wanted to commit suicide," but that when asked "Mr. Roberts's denied any past psychiatric history, other than his addiction to crack cocaine," and denied that he currently had suicidal thoughts. It also noted that Roberts showed no signs of "anxiety, hallucinations, or delusions" and that "he denied that he felt sad." And finally it noted that Roberts's explained that he "didn't want to be locked up the rest of his life" and that Roberts blamed his "crack cocaine addiction" for his "taking the life of an innocent bystander."

Based on these observations, Dr. Arambula's stated in his report that "I cannot conclude that Mr. Roberts suffers from any significant degree of depression ... or for that matter any other psychiatric disturbance." He further stated that "[t]he most salient issue in Douglas Roberts's history is his addiction to crack cocaine." And after first acknowledging that "Depression can sometimes affect a person's judgment and decision-making so severely that [he] wish[es] for premature death," he concluded that "I cannot find that depression exists to such a degree that its presence would coerce Mr. Roberts into seeking the death penalty."

Based on this report and his own observations, Pickell concluded that Roberts was competent to stand trial and to make decisions regarding trial strategy, including decisions explicitly designed to ensure the imposition of the death penalty. He also concluded that it was unnecessary to request a competency hearing. The trial judge never saw Dr. Arambula's report, but based on his own observations of Roberts he decided that there was no reason to hold a competency hearing. Roberts was subsequently convicted and sentenced to death.

In both his direct appeal and state habeas application Roberts challenged his conviction and sentence. Among other claims, Roberts brought a Pate claim arguing that the trial judge should have ordered a competency hearing, and several Strickland claims arguing that Pickell provided ineffective assistance of counsel by not investigating Roberts's medical history and by adhering to Roberts's decisions regarding trial strategy. The state courts denied relief, concluding that both the trial judge and Pickell reasonably relied on their own observations of Roberts, and in the case of Pickell on Dr. Arambula's report, in deciding that a competency hearing was unnecessary and that Roberts was competent to direct his trial strategy towards a death sentence.

The state habeas court did, however, find that Dr. Arambula's medical conclusions about Roberts's mental health were based on an incomplete understanding of Roberts's medical and psychiatric history. It found that Pickell "did not make available to Dr. Arambula the previous medical records of the defendant as part of Dr. Arambula's examination and analysis, nor did he advise Dr. Arambula of a previous head injury suffered by the defendant." Those medical records were compiled a year before the murder while Roberts was in a psychiatric facility after threatening suicide. It is also clear from the record, and specifically Dr. Arambula's report, that the doctor did not speak to any of Roberts's family members or former physicians regarding Roberts's medical, psychiatric, or social history.

During the state habeas proceedings, counsel was once again appointed for Roberts. His counsel, David Sergi, made multiple requests for funding to investigate Roberts's case. His first request was funded, and his second request was partially funded, and partially denied. After his initial investigation into Roberts's file and medical history, and after his second funding request, Sergi determined that he needed both expert testimony regarding Robert's mental health and a full mental health examination of Roberts to adequately present Roberts's habeas claims. Sergi made an oral inquiry to the Texas Court of Criminal Appeals regarding the possibility of the necessary further funding. Sergi was informed that he had met the funding cap set for Roberts's case and no further funding would be forthcoming. He then decided to make no further requests for assistance. On Roberts's behalf, Sergi made a request to the state habeas trial judge to hold an evidentiary hearing. At such a hearing, he claims he would have challenged Pickell's conclusions concerning Roberts's mental health and his decisions regarding trial strategy. Further, he would have challenged Dr. Arambula's diagnosis of Robert's mental health at the time of trial. The state habeas court refused to hold a hearing and adopted in full Texas's recitation of the facts. Based on those facts, it then denied habeas relief on all claims.

Roberts then brought the present federal habeas petition. Counsel was again appointed for Roberts. His new counsel requested funding for a mental health examination and requested an evidentiary hearing and a period of discovery. All of these requests were denied by the district court. The district court concluded that Roberts had not diligently developed the factual record in state court and was thus not entitled to discovery, funding for a mental health examination or an evidentiary hearing. It concluded that Roberts's state habeas counsel's oral request for funding for a mental health examination and his request for an evidentiary hearing did not constitute due diligence in developing the factual record. The district court did, however, grant Roberts a COA on his request for an evidentiary hearing.

On the substance of Roberts claims, the district court held that the state habeas court erred in denying Roberts's Pate claim, and concluded that the trial court should have ordered a competency hearing. It, however, further concluded that although the state habeas court's ruling was incorrect, it was not unreasonable. As to Roberts's ineffective assistance of counsel claims, it held that Roberts could not establish prejudice during the guilt/innocence phase of the trial because the evidence of his guilt was overwhelming. It further held that as to the punishment phase of Roberts's trial, Pickell's performance was not deficient because Pickell simply followed Roberts's orders regarding trial strategy. It granted an additional COA on the Pate claim. Roberts requested that this Court expand the COA to include his ineffective assistance of counsel claims. We granted that request in part, granting a COA as to whether Pickell rendered ineffective assistance of counsel by failing to properly develop evidence of Roberts's mental illness, or by failing to make adequate use of Roberts's court-appointed psychiatrist. See Roberts v. Dretke, 356 F.3d 632, 641 (5th Cir.2004). Roberts now brings this appeal.

* * *

We have held that in cases where a petitioner was denied an evidentiary hearing by the state habeas court and was denied funding by the state due to a cap on spending "failure to fully develop the record below is not attributable to any fault of" the petitioner. Clark, 202 F.3d at 765 (holding § 2254(e)(2) not applicable when petitioner's request for investigation funds and evidentiary hearing were denied); see also Beazley v. Johnson 242 F.3d 248, 273 (5th Cir.2001) ("We do not suggest the state has an obligation to pay for investigation of as yet undeveloped claims; but if the prisoner has made a reasonable effort to discover the claims ... § 2254(e)(2) will not bar him from developing them in federal court.").

However, "[m]ere requests for evidentiary hearings will not suffice; the petitioner must be diligent in pursuing the factual development of his claim." Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir.2000). We have already held that Roberts was not diligent in seeking his medical records and affidavits from family members. See Roberts, 356 F.3d at 641. And while further funding from the state might have provided Roberts the opportunity to seek expert assistance, it is not clear that, without access to the medical records that Roberts failed to gather, such an expert would have produced any useful testimony. Regardless, no action by the state habeas court prevented Roberts from seeking an affidavit from Dr. Arambula concerning whether a more complete understanding of Roberts's medical history would have led to a change in his medical opinion about Roberts's mental health and competence. While the state habeas court could have been more helpful with regards to funding and holding an evidentiary hearing, Roberts was not diligent in developing the factual record to support his claim with the resources at his disposal. The district court did not err by refusing to hold an evidentiary hearing. III The district court correctly concluded that the state habeas court's denial of Roberts's Pate and Strickland claims was not unreasonable or contrary to Supreme Court precedent. Further, the district court did not err by concluding that it was legally forbidden from holding an evidentiary hearing. The district court's ruling is AFFIRMED.

Roberts v. Dretke, 356 F.3d 642 (5th Cir. 2004)(Habeas)

Background: State prisoner petitioned for writ of habeas corpus. The United States District Court for the Western District of Texas, Edward C. Prado, Judge, denied the writ, and petitioner sought a certificate of appealability (COA) on ineffective assistance claim.

Holdings: The Court of Appeals, Emilio M. Garza, Circuit Judge, held that:
(1) petitioner was entitled to a COA on his claim that defense counsel rendered ineffective assistance of counsel by failing to properly develop evidence of petitioner's mental illness, and
(2) petitioner was also entitled to a COA on his claim that counsel was deficient by failing to make adequate use of petitioner's court-appointed psychiatrist. Granted.

EMILIO M. GARZA, Circuit Judge:
Petitioner Douglas Alan Roberts ("Roberts") seeks a certificate of appealability ("COA") on his claims that his attorney rendered ineffective assistance in his Texas death penalty trial, wherein he was convicted of capital murder and sentenced to death. [FN1] Roberts contends that his trial attorney, Steven Pickell ("Pickell"), rendered ineffective assistance of counsel because of his deficient preparation, including (1) his failure to adequately prepare for trial, specifically his failure to hire an investigator and interview witnesses for trial including Roberts's family members about testifying as mitigating witnesses in the punishment phase of Roberts's trial; (2) failure to properly develop evidence of Roberts's mental illness; and (3) his failure to make adequate use of Roberts's court-appointed psychiatrist. Roberts maintains that the state court decision holding that Pickell satisfied the minimum standard of performance required of an attorney representing a capital client who is known to have mental health problems is an unreasonable application of clearly established federal law, and that the district court's conclusion to the contrary is at least debatable among jurists of reason.

FN1. The district court granted Roberts a COA on one other claim presented in his federal habeas petition. Roberts's instant petition is limited to his request for COA on his ineffective assistance claim, which was denied a COA in the district court.

Before trial, Roberts advised Pickell of his desire to be convicted and sentenced to death. Pickell filed several pre-trial motions on Roberts's behalf, including a motion for expenses for a mental health expert, which the court granted to the extent of $1,000. A court-appointed psychiatrist, Dr. Michael Arambula ("Dr. Arambula"), conducted a "mental status examination" of Roberts. Pickell did not ask Dr. Arambula to investigate Roberts's family history, compile a social or psychiatric history of Roberts, or evaluate the potential mitigating evidence. The purpose of Dr. Arambula's mental status examination of Roberts was, simply, to ascertain whether Roberts was competent to direct his trial strategy towards death.

In preparing his report, Dr. Arambula relied exclusively on his own clinical interview with Roberts, the police reports, and the victim's autopsy report. Dr. Arambula was not, however, furnished with any other medical records, such as the record of Roberts's treatment for "psychiatric problems" and "suicide ideation," which occurred less then one year before the crime at issue in this case. Nor was Dr. Arambula made aware of a head injury Roberts had suffered as a child. In his report, which was furnished to Pickell, Dr. Arambula concluded that Roberts did not suffer from any significant degree of depression, and that "[t]he most salient issue in Douglas Roberts's history is his addiction to crack cocaine." [FN2] Dr. Arambula concluded that, in seeking the death penalty for himself, Roberts was simply exercising his "right" to choose death over life. [FN3]

FN2. Dr. Arambula elaborated: Douglas Roberts's history reveals a reported episode of depression (he calls it a nervous breakdown) after which he started using crack cocaine. Over the ensuing years however, it is difficult to find another psychiatric disturbance[ ] (other than cocaine addiction) in his history. Further, Mr. Roberts denies experiencing any recent symptoms of depression during his sobriety in the Kerrville jail, and [the] mental status examination of him only reveals mild lability (instability) of his mood and affect. As a result, I cannot conclude that Mr. Roberts suffers from any significant degree of depression, or for all that matters, any other psychiatric disturbance.

FN3. Dr. Arambula explained: Depression can sometimes affect a person's judgment and decision-making so severely that they wish for a premature death. This situation is not so unusual in cases where patients refuse treatment or make suicide attempts under the duress of depression. Prior to my examination of Mr. Roberts, this issue was foremost in my approach to examining him. However, and as I state earlier, I cannot find that depression exists to such a degree that its presence would coerce Mr. Roberts into seeking the death penalty. Albeit surprising to most people, choosing death over life in the absence of severe mental disease is the right of any individual. Douglas Roberts's psychiatric evaluation fits this bill.

At various stages of the trial proceedings, Roberts and Pickell held "defense conferences" outside of the presence of the trial court and the prosecutor. These conferences, which Pickell transcribed, provide a record of Roberts's direction of a trial strategy towards death: Roberts instructed Pickell to excuse venire members who expressed any reservations about assessing the death penalty; not to "fight the death penalty" or ask for a life sentence in the closing argument; not to request a jury instruction on the parole laws, not to contact Roberts's family members about the trial or subpoena them as mitigation witnesses for the punishment phase; not to call Dr. Arambula or any other mental health expert as a mitigation witness at the punishment phase, not to request that the jury be instructed that its failure to reach a decision on punishment will result in a life sentence; and not to present any evidence that would "help the jury answer [the punishment] questions in such a way that a life sentence would result." Consistent with Roberts's instructions, Pickell accepted venire members who were favorable to the death penalty; struck venire members opposed to the death penalty; conducted no individual voir dire to rehabilitate venire members who had initially indicated they were opposed to the death penalty; [FN4] did not interview Roberts's family members before trial; called no witnesses at the guilt/innocence phase of the trial; called no witnesses at the punishment phase; did not request a jury instruction on the parole laws; and made no argument in favor of a life sentence.

FN4. Roberts waived individual voir dire of the jury panel in a pre-trial motions hearing.

On direct appeal, Roberts argued that Pickell rendered ineffective assistance by complying with Roberts's self-destructive orders and directions. Roberts maintained that Pickell should have ignored his directions where those directions worked to Roberts's detriment. The court rejected this argument. It reasoned that, in every instance where Pickell followed Roberts's self-destructive instructions, Pickell had advised a contrary course of action, but Roberts had "disregarded that advice and directed his counsel to comply with the requests and orders." The court concluded that Roberts "cannot now claim his trial counsel was ineffective for complying with [Roberts's] own orders and requests on the conduct of his defense."

On state habeas review, Roberts claimed that Pickell rendered ineffective assistance of counsel. Roberts argued that Pickell's failure to request a competency hearing; to furnish Dr. Arambula with copies of his psychiatric records; school records and other background information; and to furnish the trial court with a copy of Dr. Arambula's report constituted ineffective assistance. The court found that Pickell failed to make Roberts's previous medical records available to Dr. Arambula and failed to advise Dr. Arambula of a head injury Roberts suffered as a child. However, the court also found that Pickell "did not observe, during the course of his pretrial meetings with the defendant or at any other phase of his investigation," evidence to support "incompetency or insanity." It reasoned that Pickell's "lay" observations in dealing with Roberts, taken together with his prior experience, led him to believe that there was no reasonable expectation that it would be of any value to raise issues of incompetency or insanity. The court thus concluded:

The actions and demeanor of the defendant through these proceedings did not raise an issue as to require or necessitate a competency hearing. The failure of trial counsel, Mr. Pickell, to request a competency hearing, was not error nor did it amount to ineffectiveness of counsel.

On federal habeas review, Roberts re-urged his state-court claim of ineffective assistance of counsel. Roberts argued that Pickell rendered ineffective assistance by (1) failing to request a competency hearing for Roberts; (2) refusing Roberts's request for an EEG; (3) failing to adequately investigate Roberts's background; (4) failing to request a full neurophysical evaluation of Roberts; (5) failing to adequately prepare Dr. Arambula by furnishing him with copies of Roberts's relevant medical records; (6) deferring to Roberts's desires to waive individual voir dire, not to request a jury instruction regarding the impact of parole eligibility on a life sentence, not to call Roberts's family members to testify in mitigation at the punishment phase of trial, and not to argue in favor of a life sentence; (7) failing to request a speedy trial and, instead; (8) advising Roberts to waive individual voir dire as a means of securing a speedier trial setting; (9) failing to advise Roberts that jurors who favor the death penalty were predisposed to convict; and (10) failing to adequately cross-examine and rebut bloodstain pattern analysis testimony given by a prosecution witness.

In support of his petition, Roberts offered materials that had never been presented to the state courts, including: affidavits from his father and brother, records relating to his nine-day treatment at a psychiatric hospital for "suicide ideation," documents relating to a lawsuit stemming from an accident in which he was injured as a child, his own affidavit, his mother's mental health records, his own medical records from prison, and his handwritten notes to Pickell.

The federal habeas court found that Roberts failed to exhaust all available state remedies with regard to several aspects of his ineffective assistance claim, including his allegations that Pickell was ineffective for refusing Roberts's request for an EEG; for failing to request a neurophysical evaluation of Roberts; for failing to advise Roberts that jurors who favor the death penalty were predisposed to convict; and for failing to adequately cross-examine and rebut bloodstain pattern analysis testimony given by a prosecution witness. Thus the district court found that Roberts had procedurally defaulted on these aspects of his ineffective assistance claim.

On the merits, the federal habeas court concluded that Pickell's decision not to request a competency hearing did not constitute ineffective assistance of counsel. The district court found that Pickell did not perform deficiently because he "could have reasonably relied on Dr. Arambula's conclusions, which confirmed said counsel's own independent observations regarding [Roberts's] obvious ability to consult with counsel and understand the proceedings against him." Additionally, the court concluded that Pickell's performance did not prejudice Roberts's defense, "given the total absence of any evidence presented to the Texas Court of Criminal Appeals in the course of [Roberts's] direct appeal and state habeas corpus proceeding showing that [Roberts] could have satisfied the constitutional standard for showing incompetence to stand trial...." On the remaining aspects of Roberts's claim of ineffective assistance, the court concluded that Roberts failed to show deficient performance. It found that the Texas Court of Criminal Appeals reasonably held that Roberts's "clear specific directives to his trial counsel precluded a finding that said counsel acted in an objectively unreasonable manner when said counsel chose to follow [Roberts's] directives regarding trial strategy." It further found that Roberts made no showing of prejudice, as he did not present the state courts with any "allegations that, but for the act or omission of his trial counsel, [he] would have relented from his clearly self- destructive course of conduct."

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For the foregoing reasons, we GRANT Roberts a COA on his claims that Pickell rendered ineffective assistance of counsel by failing to properly develop evidence of Roberts's mental illness, [FN6] and by failing to make adequate use of his court-appointed psychiatrist.

FN6. We do not issue a COA as to counsel's failure to seek a full neurophysical examination (including an EEG) of Roberts, as this claim is procedurally barred. Nor do we issue a COA as to counsel's failure to interview Roberts's family members about testifying at the punishment phase of Roberts's trial.

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Petitioner's application for writ of habeas corpus is DENIED.