Green v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

No. 96-50669
_______________

RICKY LEE GREEN,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON,
Director, Texas Department of Criminal Justice,
Institutional Division,

Respondent-Appellee.

_________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________

June 27, 1997

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Ricky Green appeals the denial of his petition for a writ of

habeas corpus filed under 28 U.S.C. § 2254 (West Supp. 1997).

Concluding that Green has failed to make a substantial showing of

the denial of a federal right, we deny him a certificate of

probable cause (“CPC”) and vacate the stay of execution.

I.

In April 1986, Green was charged with the capital murder of
Steven Fefferman. Following his arrest, Green provided the police

with a statement concerning his relationship with Fefferman.

According to Green, he had met Fefferman on the eve of the murder

at Casino Beach, an area known to be frequented by homosexuals.

After a sexual encounter with Fefferman, Green dropped off his car

at his own home and proceeded to Fefferman’s home, where the two

drank some beer and again engaged in sexual activity. After Green

convinced Fefferman to allow him to tie Fefferman to the bed, Green

stabbed Fefferman several times. Before leaving Fefferman’s house,

Green sexually mutilated Fefferman, ransacked the bedroom in search

of money, and left in Fefferman’s car.

II.

Following a jury trial,1 Green was convicted of capital murder

and sentenced to death in September 1990. During the sentencing

phase, the court admitted evidence of three other murders to which

Green had confessed, which murders also involved beatings and

mutilation of genitalia similar to those surrounding the Fefferman

murder, and also Green’s stalking a seventeen-year-old girl and

assaulting two teenage boys.

Green was represented during pre-trial by court-appointed

counsel Jeff Kearney and Suzie Johnson. Following a change of

venue, Kearney withdrew and was replaced by David Bays. A third

1
Although Green was indicted originally in Tarrant County, Texas, in the
Northern District of Texas, the case was transferred, at Green’s request, to
Travis County, Texas, in the Western District of Texas. Following the trial,
venue was transferred back to Tarrant County.

2
attorney, Kenneth Houp, also was appointed to assist in the pre-

trial proceedings, although his role ended with the completion of

jury selection. Green was represented throughout the trial by Bays

and Johnson, on direct appeal by Johnson and Danny Burns, and on

his first state habeas application by Robert Ford.

Green’s conviction and sentence were affirmed on direct

appeal. See Green v. State, No. 71,170 (Tex. Crim. App. Dec. 9,

1992) (en banc) (unpublished). The Court of Criminal Appeals later

denied Green’s application for habeas relief. See Ex Parte Green,

No. 26,331-01 (Tex. Crim. App. Apr. 19, 1994) (en banc) (per

curiam).

In September 1994, Green filed, in the United States District

Court for the Northern District of Texas, a pro se motion for

appointment of counsel to file a federal habeas petition pursuant

to 28 U.S.C. § 2254 and for a stay of execution. After the court

granted Green permission to proceed in forma pauperis and appointed

counsel, Green filed a motion to withdraw his pro se pleading on

the ground that jurisdiction lay properly in the Western District

of Texas.

Also in September 1994, Green filed a second state habeas

petition in the Tarrant County trial court, which petition was also

denied by the Court of Criminal Appeals. See Ex Parte Green,

No. 26,331-02 (Tex. Crim. App. Oct. 3, 1994) (en banc) (per

curiam). Concurrently with that denial, Green filed a notice of

voluntary dismissal of the Northern District habeas proceeding

pursuant to FED. R. CIV. P. 41(a)(1), and filed a new petition in

3
the Western District.

The Western District petition was transferred to the Northern

District, the situs of the indictment, which transfer the Northern

District concluded was proper under Dobard v. Johnson, 749 F.2d

1503 (11th Cir. 1985). On appeal we reversed, concluding that,

pursuant to Gosch v. Collins, 20 F.3d 1170 (5th Cir.) (per curiam),

jurisdiction lay in the Western District. See In re Green, 39 F.3d

582 (5th Cir. 1994).

In the Western District, Green asserted thirteen grounds for

habeas relief, each of which had been exhausted in state court

either on direct appeal or through the state post-conviction

process. In July 1996, the district court reviewed de novo and

adopted the findings of the magistrate judge to grant the state’s

summary judgment motion and to deny Green’s habeas petition. Green

filed his application for a CPC in August 1996. The district

court, construing the CPC application as an application for a

certificate of appealability (“COA”), denied the application in

September 1996.

III.

A.

As a threshold matter, we must determine whether the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996,

Pub. L. No. 104-132, 110 Stat. 1214 (1996), governs the instant

appeal. Although we have held previously that the standards of

review set forth in the AEDPA apply to all habeas petitions that

4
were pending on April 24, 1996, the date on which the President

signed the bill into law, see Drinkard v. Johnson, 97 F.3d 751,

764-66 (5th Cir. 1996), we now must conclude otherwise in light of

Lindh v. Murphy, No. 96-6298, 1997 WL 338568 (U.S. June 23, 1997).

Among other things, the AEDPA amends § 2244 and §§ 2253-2255

of chapter 153 of title 28 of the United States Code, the

provisions that govern all habeas proceedings in federal courts.

See 110 Stat. 1217-21. The AEDPA also creates, for habeas

proceedings against a state in capital cases, a new chapter 154

with special rules favorable to the state, but applicable only if

the state opts in by agreeing to provide for the appointment of

post-conviction counsel in state habeas proceedings. See 110

Stat. 1221-26.

Whereas the amendments to chapter 153 do not contain an

effective date, the AEDPA provides expressly that the new

chapter 154 “shall apply to [state capital] cases pending on or

after the date of enactment of this Act.” 110 Stat. 1226. In

Lindh, the Court construes “this provision of § 107(c) . . . as

indicating implicitly that the amendments to chapter 153 were

assumed and meant to apply to the general run of habeas cases only

when those cases had been filed after the date of the Act.”

1997 WL 338568, at *4.

As we have already noted, amended § 2254(d) (in chapter 153
but applicable to chapter 154 cases) governs standards
affecting entitlement to relief. If, then, Congress was
reasonably concerned to ensure that chapter 154 be applied to
pending cases, it should have been just as concerned about
chapter 153, unless it had the different intent that the
latter chapter not be applied to the general run of pending
cases.

5
 Nothing, indeed, but a different intent explains the
different treatment.

Id. at *5.

As we have stated, chapter 154 is apposite to capital cases

only where states have elected to opt in and have qualified to

participate by meeting the requirements of § 107. Because the

State of Texas has not yet qualified for the expedited procedures

governing habeas petitions in capital cases, see Carter v. Johnson,

110 F.3d 1098, 1104 (5th Cir. 1997), chapter 154 does not apply to

the instant case.2 Thus, in light of Lindh's explication that “the

negative implication of § 107(c) is that the new provisions of

chapter 153 generally apply only to cases filed after the act,”

1997 WL 338568, at *8, and given that Green filed the instant

petition before the April 24, 1996, effective date of the AEDPA, we

apply pre-AEDPA habeas law to his claims.

B.

Before the advent of the AEDPA, a petitioner could not appeal

a district court’s ruling on a habeas petition that concerned

detention arising from state court proceedings unless a district or

circuit judge issued a CPC. 28 U.S.C. § 2253; see also Baldree v.

Johnson, 99 F.3d 659, 660 (5th Cir. 1996), cert. denied, 117 S. Ct.

1489 (1997). To obtain a CPC, the petitioner must make a

“substantial showing of a denial of [a] federal right.” Barefoot

2
Carter, Drinkard, and the rest of the post-Drinkard AEDPA progeny
presumably remain precedent in this circuit post-Lindh to the extent that they
interpret the provisions of the AEDPA and do not conflict with Lindh's conclusion
that the chapter 153 amendments do not apply retroactively.

6
v. Estelle, 463 U.S. 880, 893 (1983) (internal quotes and citation

omitted). Such a showing requires a demonstration “that the issues

are debatable among jurists of reason; that a court could resolve

the issues in a different manner; or that the questions are

adequate to deserve encouragement to proceed further.” Id. at 893

n.4.

Section 102 of the AEDPA amended 28 U.S.C. § 2253 to require

that a petitioner obtain a COA. See 28 U.S.C. § 2253(c)(1)). A

COA may be issued only where the applicant has made a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). Notwithstanding the slightly different wording between

the pre-AEDPA and the amended § 2253, we have noted previously that

the AEDPA was intended to codify the Barefoot standard and thus

that the standard governing the issuance of a COA requires the same

showing as that for obtaining a CPC. See Drinkard, 97 F.3d at 756.

Nonetheless, because Green’s habeas petition was filed with the

district court before April 24, 1996, Lindh compels that we review

his petition for a CPC under the pre-AEDPA jurisprudence.

Under the pre-AEDPA standards, state court findings are

entitled to a presumption of correctness unless, among other

things, the petitioner demonstrates that the state courts failed to

resolve the claims on the merits. See Livingston v. Johnson,

107 F.3d 297, 302 (5th Cir. 1997). Because Green argues that the

state failed so to adjudicate his claims, we must determine

initially whether a state court has disposed of Green’s claims on

7
the merits.3

Green argues that the state habeas courts’ “perfunctory

disposition” is not a resolution on the merits because, he alleges,

the petitions were denied without an evidentiary hearing4 “and

without reference to any factual or legal issue presented.”

According to Green, the resolution-on-the-merits prerequisite is a

proxy for the quality of the legal process of resolving a dispute;

the court’s treatment of the petitions must evince a “careful

consideration of the constitutional claims” and a thorough and

meaningful substantive evaluation of the claims.

We disagree both with Green’s proffered construction of the

merits inquiry and with his contention that the state courts did

not adjudicate his habeas claims on the merits. “Resolution on the

merits” is a term of art in the habeas context that refers not to

the quality of a court’s review of claims, but rather to the

court’s disposition of the caseSSwhether substantive or procedural.

See Preston v. Maggio, 705 F.2d 113, 116 (5th Cir. 1983). We must

inquire, on a case-by-case basis, whether a resolution was on the

merits, considering the following factors: (1) what the state

courts have done in similar cases; (2) whether the history of the

case suggests that the state court was aware of any ground for not

3
Green argued originally that, under the AEDPA jurisprudence, his claim
has not been “adjudicated on the merits” and thus was not amenable to state court
deference. Because Lindh requires that we construe his habeas petition under
pre-AEDPA law, we treat his “adjudication on the merits” argument as one
challenging the sufficiency of the merits resolution of his petitions in state
court, pursuant to the former 28 U.S.C. § 2254(d)(1) & (2).
4
We consistently have upheld the validity of paper hearings in state
habeas proceedings. See Livingston, 107 F.3d at 303.

8
adjudicating the case on the merits; and (3) whether the state

courts’ opinions suggest reliance upon procedural grounds rather

than a determination of the merits. See id.

A careful review of the state courts’ opinions denying Green

habeas relief reveals that his claims were in fact disposed of on

the merits. In denying Green’s first state habeas petition, the

Court of Criminal Appeals acknowledged that he presented “fourteen

(14) allegations in which he challenges the validity of his

conviction or sentence. The trial court recommended the relief

sought be denied. This Court has reviewed the record. We agree

with the trial court’s recommendations and accordingly deny habeas

relief.”

The trial court memorandum to which the Court of Criminal

Appeals refers indicates that the trial court considered Green’s

allegations, the state’s reply, the case record, and the evidence

presented by both parties before determining that habeas relief be

denied. Neither the trial court’s nor the Court of Criminal

Appeals’s order makes mention of procedural grounds for denying

relief, nor has Green brought any to our attention.

With respect to Green’s second habeas petition, the trial

court memorandum, again to which the Court of Criminal Appeals

refers in denying relief, not only indicates that “[Green’s]

assertions in his application for writ of habeas corpus are without

merit,” but specifically excludes any reliance upon procedural

grounds for denying relief. The trial court concluded expressly

(1) “that it is not barred from ruling upon the merits of [Green’s]

9
claim by the pendency of [his] motion to dismiss in Federal

District Court” and (2) that “[Green] is not procedurally barred

from seeking relief on the merits of his claim.” The Court of

Criminal Appeals, after reviewing the record on its own, referenced

the trial court’s memorandum and “agree[d] with the trial court’s

recommendation and, accordingly, denie[d] all requested habeas

corpus relief.”

We are confident, therefore, that Green’s habeas claims were

resolved on the merits, as opposed to having been disposed of on

non-merits-based, procedural grounds; the presumption of

correctness therefore applies. See Livingston, 107 F.3d at 302-03.

IV.

A.

Green alleges that his counsel’s performance at both the trial

and sentencing phases was ineffective because, after having

conscripted an expert (Dr. Richard Rappaport) and considered

carefully his conclusions, they decided not to put on an insanity

defense. Green argues that his counsel’s reasons for not

presenting the defense are unclear from the record; that the

internal conflict within the defense team precludes a finding that

the rejection of Rappaport’s defense was trial strategy; and that

counsel’s decision was based in part upon an erroneous

interpretation of the law concerning whether presentation of the

defense would have opened the door to the cross-examination of

Rappaport about additional incriminating informationSSnamely,

10
fifteen other murders to which Green confessed to Rappaport.

To establish ineffective assistance of counsel, Green must

demonstrate both deficient performance and prejudice resulting from

that deficiency. See Strickland v. Washington, 466 U.S. 668, 687

(1984). We compare counsel’s performance to an objective standard

of reasonableness, mindful of the strong presumption of adequacy.

We will not find inadequate representation merely because, with the

benefit of hindsight, we disagree with counsel’s strategic choices.

See id. at 689-90. “A conscious and informed decision on trial

tactics and strategy cannot be the basis for constitutionally

ineffective assistance of counsel unless it is so ill chosen that

it permeates the entire trial with obvious unfairness.” Garland v.

Maggio, 717 F.2d 199, 206 (5th Cir. 1983) (on rehearing). Because

an ineffective assistance claim is a mixed question of law and

fact, we review the district court’s decision de novo. See Salazar

v. Johnson, 96 F.3d 789, 791 (5th Cir. 1996). As we noted above,

findings of fact are entitled to a presumption of correctness. See

Washington, 466 U.S. at 698.

Applying the prejudice prong in the context of counsel’s

performance at sentencing, we ask whether the petitioner has

demonstrated “a ‘reasonable probability’ that the jury would not

have imposed the death sentence in the absence of errors by

counsel.” Carter, 110 F.3d at 1110. Failure to establish either

prong defeats the claim. See Lincecum v. Collins, 958 F.2d 1271,

1278 (5th Cir. 1992).

Kearney averred that he hired Rappaport to examine Green and

11
that, based upon Rappaport’s conclusions that Green was in fact

legally insane at the time of the Fefferman murder, he intended to

make full use of Rappaport’s findings during the trial and

sentencing phases. After the change of venue, Kearney left the

defense team and was replaced by Bays, at which time conflicts

began to arise between Johnson and Bays. According to Johnson,

Bays wished to use Rappaport’s testimony to establish that Green’s

insanity turned him into a “serial killer.” Believing that such a

tactic would add to the state’s showing of “future dangerousness”

during the punishment phase of the trial, Johnson disagreed with

the decision to place Rappaport on the stand, and Johnson and Bays

ultimately agreed to abandon the insanity defense.5

Green contends that the internal wrangling between Johnson and

Bays renders suspect their decision not to present an insanity

defense. Although the record does demonstrate that conflict

existed, Green has proffered no evidence tending to prove that the

decision not to place Rappaport on the stand was infected

impermissibly with whatever personal disagreements there were. To

the contrary, Johnson and Bays proffered the other valid tactical

5
The following exchange of notes between Johnson and Green during jury
selection illustrates Johnson’s tactics:
Green: “[T]ell me something Ms. Johnson, did you drop the
insanity plea just to save the state money or did ya’ll have
something against Mr. Rappaport or is there something else”?
Johnson: “We dropped it because Rappaport’s testimony would
let the jury know you said you killed Wendy Robinson, some woman in
Florida, and 15 other people. That proves the ‘future
dangerousness’ question #2. I will not prove my client’s future
dangerousness. I will not prove up a murder (Wendy) where my client
is a suspect. #2 Rappaport’s conclusion that you were insane is too
shallow. #3 if Rappaport testified you are 100% guaranteed D.P.”

12
reasons we have mentioned.6

Even assuming arguendo that Johnson and Bays erred in

concluding that Rappaport’s testimony would have opened the door to

additional incriminating evidence, this error alone does not give

rise to a constitutional ineffectiveness claim. See Moreno v.

Estelle, 717 F.2d 171, 176 (5th Cir. 1983) (noting that the Sixth

Amendment does not guarantee an accused “errorless

representation”). There is sufficient evidence demonstrating that

the decision not to proffer an insanity defense was a “conscious

and informed” tactical one. See Garland, 717 F.2d at 206.7 No

reasonable jurist would disagree, and Green has not made a

substantial showing of the denial of a constitutional right.

Green’s reliance on Bouchillon v. Collins, 907 F.2d 589 (5th

Cir. 1990), and Profitt v. Waldron, 831 F.2d 1245 (5th Cir. 1987),

is misplaced. In Bouchillon, we concluded that counsel was

ineffective in failing to offer an insanity defense because (1) it

was the only defense available to the defendant; and (2) although

counsel was aware that the defendant had been committed previously

6
In a draft report concerning his interviews with Green, Rappaport
describes three other murders to which Green confessed, each involving similar
stabbing and mutilation as accompanied the Fefferman murder. Green also told
Rappaport that he had killed 15 other people and that he believed that he was
doing the country a favor by killing “whores” and homosexuals.
7
Green’s contention that Martinez-Macias v. Collins, 810 F. Supp. 782
(W.D. Tex. 1991), aff’d, 979 F.2d 1067 (5th Cir. 1992), compels otherwise is
incorrect. The deficiency in Martinez-Macias was counsel’s complete failure to
investigate the legal basis for a decision not to introduce certain evidence.
Id. at 798 n.23. Green does not allege that his counsel failed to investigate
Texas law on the admissibility of the other 15 murders but rather that, after
researching the law, his counsel misunderstood the application of the law to the
instant facts. Absent more, these allegations do not rise to the level of
constitutional ineffectiveness.

13
to mental institutions, he did not ask for a psychiatric evaluation

or conduct any other investigation. 907 F.2d at 597. We concluded

the same in Profitt after also noting both that the defendant had

only the insanity defense available to him and that, although

counsel was aware that the defendant had escaped previously from a

mental institution, counsel failed to investigate his client’s

sanity, which investigation would have revealed that the defendant

had been adjudicated insane by an Idaho court only months before

the instant trial. See Profitt, 831 F.2d at 1249. Furthermore, we

gave minimal deference to the Profitt counsel’s tactical decision

not to employ the insanity defense, as we could ascertain no

advantage attendant to abandoning the defense. See id.

Not only did Green’s counsel investigate fully the possibility

of putting on an insanity defense (including conscripting Rappaport

to prepare a report based on extensive interviews with Green and

reviewing the contents of that report), but they considered various

tactical reasons attendant to their decision to present or abandon

the defense. Furthermore, the defense was not the only one

available to Green; his counsel presented a defense that he lacked

the requisite mens rea to commit the underlying felony.

With respect to Green’s claim that he was denied effective

assistance of counsel at the sentencing phase because his counsel

failed to present the Rappaport findings, we similarly find no

constitutional error. According to Green, the decision to forego

this testimony prevented the jury from receiving an explanation of

the nexus between his mitigating evidence of child abuse, severe

14
mental illness, and brain damage and his actions in killing

Fefferman. Johnson indicated, however, that she believed that the

effects of this evidence on the “future dangerousness” prong of the

Texas capital murder jury questions would “100% guarantee[]” that

Green would receive the death penalty. Furthermore, the defense

did present, through Dr. Randall Price, evidence of Green’s abusive

childhood and mental disorders and their effects upon his ability

to conform his behavior to acceptable levels.8 Thus, we agree with

the district court that Green has not made a substantial showing of

the denial of a federal right with respect to his counsel’s

decisions not to use Rappaport’s testimony.

B.

Green asserts that his counsel were ineffective in failing to

cross-examine Robert Ressler effectively during the punishment

phase of the trial. Ressler was a state witness who testified that

he had been involved in the largest survey of serial murderers ever

conducted and that, based upon this experience, he considered Green

to be an “organized serial killer.”

Although Johnson avers that she had prepared to cross-examine

Ressler, Bays decided, on the spur of the moment, to conduct the

cross-examination without having done sufficient investigation or

preparation. Bays did question Ressler concerning his credentials,

his understanding of Texas law, how potential affiliations affected

8
Green also presented, during the trial phase, substantial mitigating
evidence that described a litany of abusive actions he suffered at the hands of
his father while growing up.

15
his impartiality, and his understanding of the connection between

abused children and serial killers. Green contends that had

Ressler been cross-examined properly, he could have (1) challenged

Ressler’s conclusions that he posed a continuing risk of future

danger, (2) demonstrated that his research methods were unreliable

and inaccurate, and (3) shown that Ressler’s own writings suggest

a link between the traumatic childhoods of serial killers and their

subsequent murders.

Assuming arguendo that the cross-examination of Ressler was

deficient, Green has failed to demonstrate “a ‘reasonable

probability’ that the jury would not have imposed the death

sentence in the absence of errors by counsel.” Carter, 110 F.3d at

1110. First, Ressler testified during the rebuttal portion of the

punishment phase, at which time the jury already had heard in

detail about three other similarly-situated murders to which Green

had confessed. Thus, to the extent that Ressler testified

regarding Green’s future dangerousness, Green has failed to

disentangle the effects of evidence of the other murders from

Ressler’s more abstract research-based testimony. That is, even

assuming that the proffered cross-examination of Ressler would have

destroyed his credibility with the jury, Green has not demonstrated

a reasonable probability of prejudice.

Second, not only did Bays’s cross-examination of Ressler

elicit some support for the defense’s primary theory that Green’s

behavior was a product of his abusive childhood, but Green also had

presented Price’s testimony to that effect during the punishment

16
phase, as well as other corroborative testimony during the guilt

phase. Again, Green has not demonstrated sufficiently that

eliciting Ressler’s further agreement with the defense theory would

have enhanced, with sufficient probability, the jury’s acceptance

of the defense’s underlying theory. Reasonable jurists would not

find the issue debatable, and therefore Green has not made a

substantial showing of the denial of a federal right.

V.

A.

Green contends that he was denied his constitutional right to

be present at all phases of his trial when he was denied access to

an ex parte hearing among his counsel and the judge, during which

the court entertained Johnson’s oral motion to withdraw from

representation. Green concedes that his absence from the hearing

does not infringe upon his confrontation right but argues that it

offends his due process right to a fair trial.

A defendant has a right to be present at a proceeding

“whenever his presence has a relation, reasonably substantial, to

the fulness of his opportunity to defend against the charge.”

United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam)

(quoting Snyder v. Massachusetts, 291 U.S. 97, 106 (1934)). His

absence from such a proceeding amounts to a due process violation

only “to the extent that a fair and just hearing would be thwarted

by his absence, and to that extent only.” Snyder, 291 U.S. at 105-

06.

17
 The oral motion to withdraw was made and discussed during an

ex parte conference in chambers (in the course of jury voir dire)

and centered on disagreements between Johnson and Hays. According

to Johnson’s affidavit, her relationship with Bays had deteriorated

to the point that they no longer conferred directly regarding the

case, but rather communicated through Houp only. Johnson expressed

her frustrations regarding this situation to the court and

requested that she be permitted to withdraw from representation.

The court denied the motion, and, although stating that it would

keep the motion under advisement in the event that the working

relationship continued to worsen, the matter was not raised again.

Although Green protests that he was prejudiced by his

exclusion from the meeting, we fail to see how his absence thwarted

the fairness and just treatment of the issues at the ex parte

communication or with respect to his overall representation. Green

contends that had he been present, “he could have provided the

trial court with important information about the conflict that

would have effected [sic] the court’s ruling.” But, Green does not

give us the contents of such information or the effect it would

have had on the ruling.

Furthermore, we reject Green’s suggestion that his absence

from this meeting prevented him from becoming aware of any disputes

between his counsel and thus from exercising his right either to

take over his own defense or to request new counsel. Not only did

Johnson admit in her affidavit that “the animosity between Mr. Bays

and me was clear to everyone in the courtroom,” thus calling into

18
question Green’s protested ignorance, but we also do not believe

Green has made a substantial showing that he was denied effective

assistance because of his inability personally to request a change

of counsel that the court denied upon request from Johnson. See

Bass v. Estelle, 696 F.2d 1154, 1158-59 (5th Cir. 1983).

B.

Green argues further that the failure of his counsel on direct

appeal to raise the issue of his absence from this hearing denied

him the effective assistance of counsel on direct appeal. To this

end, Green relies upon TEX. CODE CRIM. PROC. ANN. art. 33.03 (Vernon

1986) and Adanondus v. Texas, 866 S.W.2d 210, 216-19 (Tex. Crim.

App. 1993). Assuming arguendo that Green’s absence from the

meeting ran afoul of art. 33.03, Adanondus counsels that harmless

error analysis applies to the statutory violation. See id. at 219.

Adanondus instructs further that the harmless error analysis is

informed by the Snyder “reasonably substantial relationship” test.

Thus, because we reject Green’s Snyder claim with respect to his

absence from the hearing, we conclude similarly that any error of

his counsel on direct appeal was harmless.

VI.

Green avers that his direct appellate counsel’s failure to

raise the issue of the exclusion for cause of veniremember Harren

deprived him of effective assistance. At trial, Green’s attorney

objected to the exclusion of Harren, arguing that it is

19
impermissible to grant a challenge for cause where a juror is

unable to answer affirmatively the second special issue on the

facts of the capital offense alone. The trial court correctly

overruled Green’s motion, relying upon Marras v. Texas, 741 S.W.2d

395 (Tex. Crim. App. 1987) (en banc).

At the time of Green’s appeal, Marras was the controlling

precedent, and Green’s appellate counsel therefore decided not to

raise Harren’s exclusion for cause on direct appeal. The Court of

Criminal Appeals affirmed Green’s conviction on December 9, 1992,

and his motion for rehearing, filed on December 13, was denied on

February 12, 1993. On January 13, 1993, the Court of Criminal

Appeals decided Garrett v. Texas, 851 S.W.2d 853 (Tex. Crim. App.

1993) (en banc), overruled Marras, and held that a veniremember is

not subject to a challenge for cause merely because he indicates

that he would require more evidence than the legal minimum in order

to answer special issue two affirmatively. 851 S.W.2d at 860-61.

Garrett did not become final and binding on lower courts until

rehearing was denied on April 21, 1993. See Thorpe v. Texas, 863

S.W.2d 739, 741 n.5 (Tex. Crim. App. 1993) (en banc).

Green does not dispute that Marras governed his appeal but

contends that his appellate counsel was deficient for failing to

raise the Marras issue both on his original appeal and during the

pendency of Green’s rehearing petition, but before Garrett became

final. With respect to the former claim that Green’s counsel

should have raised the Marras issue on his original appeal, we have

noted previously that there is no general duty on the part of

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defense counsel to anticipate changes in the law, see Nelson v.

Estelle, 642 F.2d 903, 908 (5th Cir. Unit A Apr. 1981), and that

counsel is not ineffective for failing to raise a claim that Texas

courts have rejected repeatedly. See Andrews v. Collins, 21 F.3d

612, 623 (5th Cir. 1994). Because it is undisputed that Marras was

controlling authority at the time of Green’s original appeal, Green

has not made a substantial showing that his appellate counsel’s

failure to raise the Marras issue in the original appeal denied him

effective assistance.

We also reject Green’s ineffectiveness claim stemming from

counsel’s failure to assert Garrett during the pendency of his

rehearing petition, but two months before Garrett became final.

Counsel is not deficient for failing to raise every meritorious

claim that may be pressed on appeal. See Ellis v. Lynaugh,

873 F.2d 830, 840 (5th Cir. 1989).

The only record evidence submitted by Green on this issue is

an affidavit by Burns, one of Green’s direct appellate counsel,

stating, “I reviewed the record and identified what is now known as

Garrett error. I also noted that the error was properly preserved.

Neither my co-counsel, Suzie Johnson, nor I raised the issue on

appeal.” Given that Garrett was not yet final and that Burns and

Johnson had identified the issue as one they did not wish to press

on appeal, their performance was not constitutionally deficient.

See Washington, 466 U.S. at 688-94.

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 VII.

Green contends that the trial court erred in failing to admit

the testimony of Dr. John Marquart during the punishment phase.

Marquart testified on voir dire that he had conducted a study of

capital prisoners whose sentences had been commuted, in which he

compared those prisoners to murderers who had received life

imprisonment. His comparisons revealed that many of the prisoners

whom juries had found to pose a threat of future dangerousness

(special issue two) in fact posed no such threat. As a result,

Marquart concluded that it is difficult, if not impossible, to

determine whether a particular defendant poses a direct threat of

future danger. Marquart opined further that he did not believe

that the death penalty deterred crime; that studies indicated that

a short-term increase in crime accompanies an execution; and that

there is little correlation between the operation of the death

penalty and the number of homicides in Texas.

The sentencer in a capital case must be permitted to consider

any constitutionally relevant mitigating evidence, see Eddings v.

Oklahoma, 455 U.S. 104, 112 (1982), which is evidence “directly

related to the personal culpability of the criminal defendant,”

Penry v. Lynaugh, 492 U.S. 302, 319 (1989). “Only then can we be

sure that the sentencer has treated the defendant as a 'uniquely

individual human bein[g]' and has made a reliable determination

that death is the appropriate sentence.” Id. (quoting Woodson v.

North Carolina, 428 U.S. 280, 304-05 (1976)). It is error to

exclude evidence opining that the defendant would not commit acts

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of violence in the future. See Robinson v. Texas, 548 S.W.2d 63,

66 (Tex. Crim. App. 1977) (en banc).

The state court determined on direct appeal that, because

Marquart’s proffered testimony related only to a generalized

critique of the accuracy of the future dangerousness prediction,

and not to Green’s own future dangerousness or to Green’s

individualized assessment of punishment, it was properly excluded.

We do not believe that the state court’s factual findings were

clearly erroneous, nor do we find any legal error.

VIII.

Green has failed to make a substantial showing of the denial

of a federal right. Accordingly, we DENY a CPC and VACATE the stay

of execution.

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