UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10725
DANNY LEE BARBER,
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 Northern District of Texas
June 23, 1998
Before POLITZ, Chief Judge, KING and DENNIS, Circuit Judges.*
POLITZ, Chief Judge:
Danny Lee Barber invoked 28 U.S.C. § 2254 and sought a writ of habeas
corpus, challenging his conviction and death sentence for capital murder. The
district court rejected his petition. Barber seeks appellate review,1 contending that
*
Judge King concurs in the judgment and Judge Dennis specially concurs.
1
Barber requests a Certificate of Appealability (COA); however, because his petition
was filed prior to the effective date of the AEDPA his application must be construed as a
request for a certificate of probable cause (CPC). Lindh v. Murphy, 117 S.Ct. 2059
(1997). The standards for issuing a CPC and the AEDPA-required COA are identical.
See Lucas v. Johnson, 132 F.3d 1069 (5th Cir. 1998); Muniz v. Johnson, 132 F.3d 214
(5th Cir. 1998). Blankenship v. Johnson, 106 F.3d 1202 (5th Cir. 1997), opinion
the penalty phase testimony by Dr. Clay Griffith relating to the future
dangerousness issue violated his fourth, fifth, and fourteenth amendment rights, as
well as the rules of Estelle v. Smith2 and Satterwhite v. Texas.3 In his competency
examination of Barber prior to trial Dr. Griffith gave no Miranda4 warnings, nor
did he obtain consent of Barber’s counsel for the examination.
Considering the record, briefs, and oral argument of counsel, in light of our
controlling precedents, the request for a certificate of probable cause must be
denied.5
BACKGROUND
Barber was indicted for the October 8, 1979 murder of Janie Ingram during
the burglary of her home. Prior to trial Barber sought a competency examination
by Dr. Charles Lett. The court granted the request and, sua sponte, directed that a
second psychiatrist, Dr. Clay Griffith, examine Barber and report thereon. The
court found Barber competent to stand trial essentially on the basis of the testimony
withdrawn and superseded on rehearing by, 118 F.3d 312
(5th Cir. 1997).
2
451 U.S. 454 (1981).
3
486 U.S. 249 (1988).
4
See Miranda v. Arizona, 384 U.S. 436 (1966).
5
Hogue v. Johnson, 131 F.3d 466 (5th Cir. 1997).
2
of Dr. Griffith.6
In August 1980 Barber was found guilty of capital murder and sentenced to
death. On direct appeal the Texas Court of Criminal Appeals affirmed in part but
remanded with directions to the trial court to conduct an evidentiary hearing to
determine whether Barber had been competent to stand trial.7 That hearing was
conducted and the trial court found Barber competent and the Texas Court of
Criminal Appeals affirmed.8 Barber petitioned for state habeas relief, challenging
the testimony of Dr. Griffith. The Texas Court of Criminal Appeals denied that
relief, concluding that the admission of the testimony of Dr. Griffith about future
dangerousness9 was error but was harmless error,10 in light of other overwhelming
6
Dr. Lett otherwise concluded.
7
Barber v. State, 737 S.W.2d 824 (Tex. Crim. App. 1987).
8
Barber v. State, 757 S.W.2d 359 (Tex. Crim. App. 1988), cert. denied, Barber
v. Texas, 489 U.S. 1091 (1989).
9
Dr. Griffith, permitted to testify about Barber’s future dangerousness during the
punishment phase, testified that Barber did not suffer from any form of mental
illness, but he did have a sociopathic anti-social personality disorder. He testified
that a sociopathic personality was characterized by: (1) repeated confrontations with
authority; (2) mental laziness preventing success in school; (3) inability to plan for
the future; (4) inability to develop useful skills necessary to retain employment; (5)
inability to develop personal relationships; (6) inability to feel or show remorse; (7)
lack of concern for others; (8) a tendency to derive pleasure from hurting others; (9)
inability to learn from experience or punishment; (10) the ability to manipulate
others; and (11) the development of extremely strong sex drives with a tendency
3
evidence. The instant proceeding followed.
The district court dismissed Barber’s petition for a writ of habeas corpus,
concluding that the admission of Dr. Griffith’s testimony as to future dangerousness
was erroneous but that it did not result in actual prejudice.11 The district court then
denied Barber’s request for CPC and Barber timely sought appellate review.
Analysis
The district court denied a CPC which we may grant only upon a “substantial
showing of the denial of a federal right.”12
In Chapman v. California,13 the Supreme Court held that in a direct appeal
“before a federal constitutional error can be harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable doubt.”14 In federal
toward sexual deviancy. He also testified that petitioner’s behavior was becoming
increasingly violent and that he
would continue to pose a threat to the safety of others even if he were to be
incarcerated.
10
See Estelle v. Smith, 451 U.S. 454 (1981).
11
Brecht v. Abrahamson, 507 U.S. 619 (1993) (citing Kotteakos v. United
States, 328 U.S. 750 (1946)); Woods v. Johnson, 75 F.3d 1017 (5th Cir.), cert.
denied, 117 S.Ct. 150 (1996).
12
Barefoot v. Estelle, 463 U.S. 880 (1983).
13
386 U.S. 18 (1967).
14
Chapman, 386 U.S. at 24.
4
habeas cases, however, the Court in the non-capital case Brecht v. Abrahamson15
held that federal courts may grant relief only when the error “had a substantial and
injurious effect in determining the jury’s verdict.”16 Barber contends that neither
the Texas Court of Criminal Appeals,17 nor the district court,18 applied the correct
harmless error analysis, urging that the more rigorous standard announced in
Chapman19 should apply, even though this is a habeas proceeding, because his
Estelle claim was not addressed on direct review and therefore never received
scrutiny under the more stringent and constitutionally mandated Chapman
standard.20
15
507 U.S. 619 (1993).
16
Brecht, 507 U.S. at 623.
17
The Texas Court of Criminal Appeals was silent as to which standard it applied.
18
The district court applied the standard espoused in Brecht v. Abrahamson 507
U.S. 619 (1993)(Whether the error “had substantial and injurious effect or influence
on the jury’s verdict”).
19
386 U.S. 18 (1967)(“harmless beyond a reasonable doubt”).
20
Some courts have held that the Brecht standard is applicable only when the
state appellate court previously has applied the more stringent Chapman standard.
See Starr v. Lockhart, 23 F.3d 1280 (8th Cir. 1994) (applying the Chapman
harmless error standard on habeas review where state courts had not found
constitutional error on direct review, and thus, had not performed harmless error
analysis); Ondorff v. Lockhart, 998 F.2d 1426 (8th Cir. 1993) (same); Other
courts have held that the language of Brecht applies to all federal habeas
proceedings. See Davis v. Executive Director of Dep’t of Corrections,
5
In December 1997, we decided this issue in Hogue v. Johnson.21 Hogue had
contended in a habeas proceeding that his death sentence was unconstitutional
because a guilty plea rape conviction from 1974, set aside because of ineffective
assistance of counsel, was admitted during the sentencing phase of his trial. Our
panel concluded that not only was Hogue’s claim procedurally barred, but even if
error had occurred the conviction did not have a “substantial and injurious effect”
on the jury. We rejected Hogue’s contention that the Chapman standard should
apply, stating: “Brecht rather than Chapman, enunciates the appropriate standard
for determining whether a constitutional error was harmless in a federal habeas
challenge to a state conviction or sentence even though no state court ever made
any determination respecting whether or not the error was harmless.”22 The court
100 F.3d 750 (10th Cir. 1996) (Brecht standard applies to all federal habeas
proceedings); Sherman v. Smith, 89 F.3d 1134 (4th Cir. 1996) (same); Horsely v.
Alabama, 45 F.3d 1486 (11th Cir. 1995); Tyson v. Trigg, 50 F.3d 436 (7th Cir.
1995)(federal habeas corpus courts should apply the Kotteakos standard even if
state courts have not conducted a Chapman analysis.)
21
131 F.3d 466 (5th Cir. 1997).
22
131 F.3d at 499; see Davis v. Executive Director of Dep’t of Corrections, 100
F.3d 750 (10th Cir. 1996), cert. denied, 117 S.Ct. 1703 (1997); Sherman v. Smith,
89 F.3d 1134 (4th Cir. 1996), cert. denied, 117 S.Ct. 765 (1997); Tyson v. Trigg,
50 F.3d 436 (7th Cir. 1995), cert. denied, 116 S.Ct. 697 (1996); Horsely v. State
of Alabama, 45 F.3d 1486 (11th Cir.), cert. denied, 116 S.Ct. 410 (1995); Smith v.
Dixon, 14 F.3d 956 (4th Cir.) (en banc), cert. denied, 513 U.S. 841 (1994).
6
reiterated that Brecht divided cases by two criteria--‘structural errors versus non
structural errors’ and ‘direct versus collateral review’-- and “[n]o third
classification of cases was made for those where the state court determined the
error was harmless and those that did not address harmlessness.” 23
Bound by the prior panel’s decision, we would note that our holding in
Hogue may be viewed as inconsistent with the Supreme Court’s underlying
reasoning for applying the Brecht standard in federal habeas review. The Brecht
court based its adoption of the Kotteakos standard on federal habeas review on three
important considerations: (1) state’s interest in finality of convictions that have
survived direct review within state court systems; (2) the principles of comity and
federalism; and (3) that “[l]iberal allowance of the writ...degrades the prominence
of the trial itself.”24 The Supreme Court in Brecht stated:
State courts are fully qualified to identify constitutional error and
evaluate its prejudicial effect on the trial process under Chapman, and
state courts often occupy a superior vantage point from which to
evaluate the effect of trial error. For these reasons, it scarcely seems
logical to require federal habeas courts to engage in the identical
23
Hogue, 131 F.3d at 499. Texas courts have also stated “[i]t is clear that for
direct review constitutional error, the state applies Chapman.” It appears that even
state courts broadly assume that Chapman need not apply to collateral review of
constitutional errors. Ex Parte Fierro, 934 S.W.2d 370, 372 (Tex. Crim. App.
1996).
24
Brecht, 507 U.S. at 635.
7
approach to harmless-error review that Chapman requires state courts
to engage in on direct review.25
In this capital case, unlike in Brecht which reached the Supreme Court after two state
appellate courts, a federal district court, and a federal court of appeals had reviewed
the error under Chapman, no court, at the state or federal level, has reviewed
Barber’s constitutional error under the Chapman standard.
Even if persuaded that Hogue is inconsistent with Brecht, we may not ignore
the decision, for in this circuit one panel may not overrule the decision of a prior
panel. Absent intervening legislation or a decision of the Supreme Court, 26 only
our en banc court is so empowered. Accordingly, we must deny Barber’s
application for a CPC on these issues.
Barber also alleged numerous other constitutional errors, including a charge that
the inordinate delay in carrying out his execution violates the eighth amendment; that
the retrospective competency hearing violated his due process rights; that he received
ineffective assistance of counsel; and prosecutorial misconduct. After reviewing all
of same, we find no basis therein for appellate review.
Barber’s request for a certificate of probable cause is DENIED.
25
Brecht, 507 U.S. at 636.
26
Ketchum v. Gulf Oil Corp., 798 F.2d 159 (5th Cir. 1986).
8
DENNIS, J., specially concurring:
Although I recognize that this panel is bound by this
court’s prior decision in Hogue v. Johnson, 131 F.3d 466
(5th Cir. 1997), cert. denied, 118 S. Ct. 1297 (1998), I
write specially to express my belief that the Supreme
Court’s holding in Chapman v. California requires that
when state courts on direct review have disregarded their
constitutional duty to apply the rigorous “beyond-a-
reasonable-doubt” standard to constitutional error,
federal courts on collateral review must apply the
Chapman harmless-error standard as part of their
obligation to vindicate federal constitutional rights and
to protect criminal defendants from unconstitutional
convictions and sentences. See Chapman v. California,
386 U.S. 18, 24 (1967) (“[W]e hold . . . that before a
federal constitutional error can be held harmless, the
court must be able to declare a belief that it was
harmless beyond a reasonable doubt.”). “The State bears
the burden of proving that an error passes muster under
this standard.” Brecht v. Abrahamson, 507 U.S. 619, 630
(1993). The Chapman standard protects those rights that
are “rooted in the Bill of Rights, offered and championed
in the Congress by James Madison, who told the Congress
that the ‘independent’ federal courts would be the
‘guardians of those rights.’” Chapman, 386 U.S. at 21.
Therefore, the Chapman harmless-error rule is of
constitutional magnitude because it is the “necessary
rule” fashioned by the Supreme Court to fulfill its
responsibility “to protect people from infractions by the
States of federally guaranteed rights.” Id.
The Supreme Court’s subsequent holding in Brecht v.
Abrahamson did not lessen that requirement, but only
relieved federal habeas courts of the obligation of
duplicating the Chapman analysis when state courts on
direct review already have satisfied this
constitutionally mandated harmless-error review. It is
clear to me that the Brecht Court’s new rule assumes that
a finding of harmlessness by the state courts under the
rigorous Chapman rule always will precede federal habeas
corpus review of the harmlessness question under the less
10
stringent rule of Kotteakos v. United States, 328 U.S.
750 (1946). See Brecht, 507 U.S. at 636 (“[I]t scarcely
seems logical to require federal habeas courts to engage
in the identical approach to harmless-error review that
Chapman requires state courts to engage in on direct
review.”). In support of its decision, the Brecht
Court adverted to the State’s interest in the finality of
convictions that survive direct review within the state
court system. Id. at 635. The Court relied also on the
principles of comity and federalism: “‘Federal intrusions
into state criminal trials frustrate both the States’
sovereign power to punish offenders and their good-faith
attempts to honor constitutional rights.’” Id. (quoting
Engle v. Isaac, 456 U.S. 107, 128 (1982)). Federal
courts cannot justify abstaining from the enforcement of
an individual’s constitutional right in deference to the
systemic values of finality, federalism, and comity,
however, unless there has in fact been a good-faith State
effort to protect constitutional rights by applying the
Chapman standard. See id.; John H. Blume & Stephen P.
Garvey, Harmless Error in Federal Habeas Corpus After
11
Brecht v. Abrahamson, 35 WM. & MARY L. REV. 163, 183-84 (Fall
1993).
Furthermore, Brecht was a non-capital case; it did
not present, and the Court did not address, the
applicability of its new rule to capital cases. “[T]he
Eighth Amendment requires increased reliability of the
process by which capital punishment may be imposed.”
Herrera v. Collins, 506 U.S. 390, 405 (1993). Moreover,
because of the unique “severity” and “finality” of the
death penalty, capital cases demand heightened standards
of reliability. Beck v. Alabama, 447 U.S. 625, 637
(1980). In this case, Barber will be executed with no
state court ever having demanded that the State prove
beyond a reasonable doubt that the constitutional error
did not contribute to the verdict obtained. By repeating
the state court’s error, this court will have failed in
its obligation to “protect people from infractions by the
States of federally guaranteed rights.” See Chapman, 386
U.S. at 21.
For these reasons, I conclude that this court in
Hogue, by adopting a per se rule that all constitutional
12
error on federal collateral review shall be analyzed
under the lenient Brecht/Kotteakos standard, regardless
of whether the state court applied the correct harmless-
error standard on direct review, mistakenly failed to
recognize its federal duty to determine whether there has
been a good-faith State effort to protect constitutional
rights by applying the Chapman standard.
DENNIS, J., specially concurring:
Although I recognize that this panel is bound by this
court’s prior decision in Hogue v. Johnson, 131 F.3d 466
(5th Cir. 1997), cert. denied, 118 S. Ct. 1297 (1998), I
14
write specially to express my belief that the Supreme
Court’s holding in Chapman v. California requires that
when state courts on direct review have disregarded their
constitutional duty to apply the rigorous “beyond-a-
reasonable-doubt” standard to constitutional error,
federal courts on collateral review must apply the
Chapman harmless-error standard as part of their
obligation to vindicate federal constitutional rights and
to protect criminal defendants from unconstitutional
convictions and sentences. See Chapman v. California,
386 U.S. 18, 24 (1967) (“[W]e hold . . . that before a
federal constitutional error can be held harmless, the
court must be able to declare a belief that it was
harmless beyond a reasonable doubt.”). “The State bears
the burden of proving that an error passes muster under
this standard.” Brecht v. Abrahamson, 507 U.S. 619, 630
(1993). The Chapman standard protects those rights that
are “rooted in the Bill of Rights, offered and championed
in the Congress by James Madison, who told the Congress
that the ‘independent’ federal courts would be the
‘guardians of those rights.’” Chapman, 386 U.S. at 21.
15
Therefore, the Chapman harmless-error rule is of
constitutional magnitude because it is the “necessary
rule” fashioned by the Supreme Court to fulfill its
responsibility “to protect people from infractions by the
States of federally guaranteed rights.” Id.
The Supreme Court’s subsequent holding in Brecht v.
Abrahamson did not lessen that requirement, but only
relieved federal habeas courts of the obligation of
duplicating the Chapman analysis when state courts on
direct review already have satisfied this
constitutionally mandated harmless-error review. It is
clear to me that the Brecht Court’s new rule assumes that
a finding of harmlessness by the state courts under the
rigorous Chapman rule always will precede federal habeas
corpus review of the harmlessness question under the less
stringent rule of Kotteakos v. United States, 328 U.S.
750 (1946). See Brecht, 507 U.S. at 636 (“[I]t scarcely
seems logical to require federal habeas courts to engage
in the identical approach to harmless-error review that
Chapman requires state courts to engage in on direct
review.”). In support of its decision, the Brecht
16
Court adverted to the State’s interest in the finality of
convictions that survive direct review within the state
court system. Id. at 635. The Court relied also on the
principles of comity and federalism: “‘Federal intrusions
into state criminal trials frustrate both the States’
sovereign power to punish offenders and their good-faith
attempts to honor constitutional rights.’” Id. (quoting
Engle v. Isaac, 456 U.S. 107, 128 (1982)). Federal
courts cannot justify abstaining from the enforcement of
an individual’s constitutional right in deference to the
systemic values of finality, federalism, and comity,
however, unless there has in fact been a good-faith State
effort to protect constitutional rights by applying the
Chapman standard. See id.; John H. Blume & Stephen P.
Garvey, Harmless Error in Federal Habeas Corpus After
Brecht v. Abrahamson, 35 WM. & MARY L. REV. 163, 183-84 (Fall
1993).
Furthermore, Brecht was a non-capital case; it did
not present, and the Court did not address, the
applicability of its new rule to capital cases. “[T]he
Eighth Amendment requires increased reliability of the
17
process by which capital punishment may be imposed.”
Herrera v. Collins, 506 U.S. 390, 405 (1993). Moreover,
because of the unique “severity” and “finality” of the
death penalty, capital cases demand heightened standards
of reliability. Beck v. Alabama, 447 U.S. 625, 637
(1980). In this case, Barber will be executed with no
state court ever having demanded that the State prove
beyond a reasonable doubt that the constitutional error
did not contribute to the verdict obtained. By repeating
the state court’s error, this court will have failed in
its obligation to “protect people from infractions by the
States of federally guaranteed rights.” See Chapman, 386
U.S. at 21.
For these reasons, I conclude that this court in
Hogue, by adopting a per se rule that all constitutional
error on federal collateral review shall be analyzed
under the lenient Brecht/Kotteakos standard, regardless
of whether the state court applied the correct harmless-
error standard on direct review, mistakenly failed to
recognize its federal duty to determine whether there has
been a good-faith State effort to protect constitutional
18
rights by applying the Chapman standard.
19