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Click here for the full text of this decision FACTS:A jury convicted Derrick Sonnier of the capital murder of Melody Flowers and her son Patrick Flowers. At sentencing, Sonnier’s attorneys, pursuant to his wishes and instructions, did not present any mitigation evidence. Sonnier confirmed that he consistently instructed his attorneys not to present any mitigation evidence. Based upon the jury’s answers to interrogatories under the 1991 Texas capital sentencing scheme, the trial court sentenced Sonnier to death. The Court of Criminal Appeals (CCA) denied Sonnier’s motion for new trial and affirmed his conviction and sentence. A state appeals court denied Sonnier’s initial petition for a writ of habeas corpus. Sonnier then filed his federal habeas petition in federal district court. The federal district court granted the state’s motion for summary judgment, dismissed Sonnier’s petition in its entirety and denied a certificate of appealability (COA). Sonnier then requested a COA from this court, claiming that: 1. His trial counsel was ineffective for failing to investigate for mitigation evidence and for failing to present mitigating evidence at the punishment phase of his trial; 2. The case Simmons v. South Carolina, 513 U.S. 154 (1994), entitled him to inform the jury that, if sentenced to life imprisonment, rather than death, he would not be eligible for parole for 35 years; and 3. Texas Code of Criminal Procedure Art. 37.071, as amended effective Sept. 1, 1991, is unconstitutional. HOLDING:The court denied Sonnier’s request for a certificate of appealability. The court concluded that the trial attorneys stopped short of making a reasonable investigation for purposes of uncovering relevant mitigating evidence that could have been useful in reaching two goals that it was their duty to pursue: 1. fully informing Sonnier of all available mitigating evidence and their opinion of its potential effectiveness based on their professional knowledge and experience; and 2. persuading the sentencing jury that Sonnier’s moral culpability was not sufficient to warrant the death penalty. The court stated that the trial attorneys did not talk to Sonnier’s family and acquaintances at the length or in the depth required for death penalty mitigation purposes. Sonnier’s refusal, the court stated, to consent to the attorneys’ undertaking more extensive and in-depth discussions with his family and acquaintances to determine the nature and extent of the mitigation evidence available was not reasonable grounds for their failure to do so. But despite finding deficient performance by Sonnier’s attorneys, the court concluded that Sonnier failed to carry his burden under the second prong of Strickland v. Washington, 466 U.S. 668 (1984), to show that there was a reasonable probability that the capital sentencing jury would have imposed a life imprisonment sentence rather than the death penalty if Sonnier’s trial attorneys had investigated more diligently for mitigation evidence. Accordingly, the court concluded that Sonnier has not shown that the error prejudiced him or rendered his penalty trial unreliable, and the court therefore denied his request for a COA in that respect. In Sonnier’s Simmons claim, Sonnier asserted that the trial court deprived him of due process of law when during jury selection the trial court refused to allow the defense to inform the jury that if convicted, Sonnier would be ineligible for parole until he had served 35 years. In Simmons, the U.S. Supreme Court held that where a state argues in favor of the death penalty based upon the defendant’s future dangerousness, the defendant must be allowed to respond to that argument with evidence showing that if sentenced to life in prison, he would not be eligible for parole. But the court noted that the Texas death penalty statutes under which the court sentenced Sonnier did not offer life imprisonment without parole as a possible sentence. Instead, the Texas scheme provided only for sentences of death or life imprisonment with the possibility of parole. Thus, the court held that Simmons did not apply to the Texas death penalty sentencing scheme at issue in Sonnier’s case. Finally, the court held that the Texas death penalty sentencing scheme did not violate either the Eighth or 14th Amendment. The scheme sufficiently narrows the death-eligible class and does not deny Sonnier equal protection of the laws, the court stated. OPINION:Dennis, J.; Higginbotham, Benavides and Dennis, J.J.

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