Long v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-10994
_____________________

DAVID MARTIN LONG,

Petitioner-Appellant,

v.

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
(3:95-CV-2241)
_________________________________________________________________

July 15, 1999

Before KING, Chief Judge, and DAVIS and WIENER, Circuit Judges.

KING, Chief Judge:*

David Martin Long seeks a certificate of probable cause to

appeal the district court’s denial of his habeas corpus

application. Long argues that he has raised a substantial

showing of the denial of a federal right with respect to six

issues, including whether he was denied his right to due process

because he was shackled during his trial. For the reasons that

follow, we decline to grant Long permission to appeal.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
 I. FACTUAL AND PROCEDURAL BACKGROUND

In February 1987, a jury convicted David Long of capital

murder for the murders of Dalpha Jester, Donna Jester, and Laura

Owens. The factual circumstances of the murders were

particularly gruesome. According to the diary of one of the

victims, in September 1986, Donna Jester picked Long up as he was

hitchhiking and thereafter allowed him to stay in her home that

she shared with her mother, Dalpha Jester, and another woman,

Laura Owens, and promised to supply him with wine and cigarettes

in exchange for house repairs. After a short period of time of

living with the three women, Long began to fear that Donna Jester

had buried bodies, possibly of other hitchhikers, in her

backyard. On September 27, 1986, Long, after doing several

repairs on the women’s house, began to fear that Donna Jester and

Laura Owens were conspiring against him. Long asked Laura Owens

to come outside with him because he wanted to talk to her, and

then attacked her with a hatchet. After striking Laura Owens,

Long entered a bedroom of the house and killed Donna and Dalpha

Jester, returning once more to the yard to kill Laura Owens. All

three victims sustained defensive wounds to their hands and arms.

After cleaning the hatchet, Long fled in Donna Jester’s car and

was later arrested and released for driving while intoxicated.

Long was eventually arrested on October 24, 1996 in Austin,

Texas. Following Long’s arrest, he confessed to the police that

he had committed the three murders and that he had also committed

2
two unrelated murders in San Bernadino, California and Bay City,

Texas.

Long initially pleaded not guilty to the capital murders of

Donna Jester, Dalpha Jester, and Laura Owens. However, after the

testimony of the state’s first witness, Long changed his plea to

guilty. Specifically, in the presence of the jury, Long stated:

“Against the advice of my two attorneys, I’m pleading guilty as

hell.” After the trial judge asked him to confirm his plea, Long

stated: “Yes. I knowingly and intentionally took the lives of

those three women. I would have shot them if I had a gun.” His

guilty plea notwithstanding, both the state and the defense

presented evidence and testimony during the guilt-innocence phase

of the trial. Although Long’s counsel’s trial strategy was to

convince the jury that Long was insane at the time of the

murders, Long repeatedly asserted that he did not want to raise

an insanity defense. Further, during the initial direct and

cross examination of Long, he repeatedly confessed to the knowing

and intentional killing of the three women. After the jury found

Long guilty of capital murder, both the state and the defense

called witnesses during the punishment phase of the trial. Long

told the jury during the punishment phase:

I don’t have any fancy scenarios, or I don’t think
to be [as] overly dramatic as [my attorney]. . . .
As far as the issue of insanity goes, I think that
you all have done decided that. If you are going to
consider that in punishment, then you should have never
found me guilty.
Now, I’ll agree that I have got some mental
problems. But I still begin to believe that there
[are] whitewashed versions of satanic activity.

3
 I don’t want to die. I really don’t. But like I
said, there are not other options.
If you believe that they are going to send me down
there to that prison and I am just going to be put in a
cell, you better forget it.
Eventually there may be some young kid coming in
there, 20 years old, first time maybe he’s
incarcerated, I’ll kill him.
If I can feel there is something wrong, if
something happens, I go into this little state of mind
I go into, he’s dead. You had better believe it.
Because they ain’t going to put me in no cell down
there. They don’t do that. . . .
I’m not saying all this because I want to die. I
don’t want to die, but there are no other options for
me.
And I know how to do this. I can get away with
it. I could have gotten away with all this shit. They
didn’t have no case but what I gave them.
That’s all I have got to say.

After deliberating, the jury sentenced Long to death.

The Texas Court of Criminal Appeals affirmed Long’s

conviction and sentence, see Long v. State, 823 S.W.2d 259 (Tex.

Crim. App. 1991) (en banc), and the Supreme Court denied Long a

writ of certiorari, see Long v. Texas, 505 U.S. 1224 (1992).

After his federal application for habeas relief was dismissed for

failure to exhaust state court remedies, Long filed a state

habeas petition. On August 30, 1993, the same Texas trial judge

who presided over Long’s original trial recommended that Long’s

state petition for habeas relief be denied, and on March 3, 1994,

the Texas Court of Criminal Appeals denied collateral relief on

the basis that the record supported the trial court’s findings of

fact and conclusions of law.

Long then filed his current federal habeas corpus

application in February 1996. The district court granted the

state’s motion for summary judgment on July 9, 1998, denying Long

4
collateral relief. On August 11, 1998, the district court denied

Long a certificate of probable cause (CPC) to appeal the denial

of habeas relief to this court.

II. DISCUSSION

Long now seeks a CPC from this court to appeal the district

court’s denial of habeas relief.1 To obtain a CPC, the

petitioner must make a “substantial showing of a denial of [a]

federal right.” Barefoot v. Estelle, 463 U.S. 880, 893 (1983)

(internal quotation marks omitted and alteration in original);

see Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997). 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.” Barefoot, 463 U.S. at 893 n.4

(internal quotation marks and alterations omitted); see Green,

116 F.3d at 1120. Under the law existing before the Anti-

Terrorism and Effective Death Penalty Act of 1996 (AEDPA), we

must afford a presumption of correctness to all state court

findings of fact (subject to certain exceptions), and we review

all conclusions of law, including those of the district court, de

novo. See Creel v. Johnson, 162 F.3d 385, 388 (5th Cir. 1998),

cert. denied, 119 S. Ct. 2027 (1999).

1
Long filed his federal habeas application before April 24,
1996; the terms of the Anti-Terrorism and Effective Death Penalty
Act of 1996 therefore do not apply. See Lindh v. Murphy, 521
U.S. 320, 336 (1997).

5
 Long raises six claims which he argues demonstrate a

substantial showing of the denial of a federal right. We address

each in turn.

A. Shackling of Long During Trial

Long’s first claim is that his trial was fundamentally

unfair in violation of his right to due process because he was

shackled during his entire trial. Before voir dire, Long’s

counsel objected to Long’s continued shackling. The trial judge

overruled Long’s objection and told the bailiff to “use whatever

you feel in the interest of safety is required for security.”

Again, before his trial was set to begin, Long objected to the

shackling, and the trial judge again overruled the objection

based on the seriousness of the charges and security concerns.

The trial judge also advised Long on how to block the shackles

from the jury’s view.

Long raised this issue on direct appeal. The Texas Court of

Criminal Appeals determined that the trial judge abused his

discretion by requiring Long to appear in restraints because the

trial judge failed to make specific findings of fact justifying

the use of shackles. See Long, 823 S.W.2d at 283. The court

concluded, however, that “this abuse of discretion did not

prejudice or harm” Long because Long failed to demonstrate that

the jury saw the shackles. Id. The Texas Court of Criminal

Appeals also noted that the trial judge took measures to prevent

the jury from viewing the shackles, including excusing the jury

before and after each time Long testified. See id.

6
 The district court assumed for the purposes of its decision

that Long could prove at an evidentiary hearing that several

jurors observed him wearing shackles during trial.

Notwithstanding this assumption, the district court concluded

that any error resulting from the trial court’s decision to

shackle Long was harmless. We agree. Despite Long’s assertions

to the contrary, it is clear from this circuit’s case law that

the harmless error test applies to the issue of whether the

shackling of a defendant violates the defendant’s constitutional

rights. See Wilkerson v. Whitley, 16 F.3d 64, 67-68 (5th Cir.),

reinstated in relevant part on rehearing en banc, 28 F.3d 498

(1994). As in Wilkerson, in which we determined that, because of

substantial evidence of the defendant’s guilt, “it was unlikely

that the result would have been different” if the defendant was

not shackled, id., we are convinced that reasonable jurists would

conclude that any error in the trial court’s decision to shackle

Long was harmless. Given the overwhelming evidence that Long

knowingly and intentionally killed the three victims and that he

would be dangerous in the future--supplied in part by his own

statements--and the limited effect that the shackling could have

had in undermining Long’s insanity defense,2 we conclude that no

reasonable jurist would determine that the shackling “had [a]

substantial and injurious effect or influence in determining the

jury’s verdict” in either the guilt-innocence or punishment phase

2
We note, as did the panel in Wilkerson, that the jury knew
that Long was an inmate “and could have assumed that all inmates
were tried in . . . shackles.” 16 F.3d at 68.

7
of Long’s trial. Brecht v. Abrahamson, 507 U.S. 619, 637

(1993).3 We therefore decline to issue a CPC on this issue.

B. Ake Claim

Long’s second argument is that his rights under the Sixth,

Eighth, and Fourteenth Amendments were violated because the trial

court failed to appoint a psychiatrist who was independent from

the state and not merely neutral, and because the trial court

denied his request for an extensive neurological examination. In

support of these propositions, Long relies on Ake v. Oklahoma,

470 U.S. 68 (1985).

On December 23, 1986, Long filed a notice of his intent to

raise the insanity defense. In response to this notice, the

trial court appointed, without objection from either Long or the

state, two psychiatrists, Dr. James Grigson and Dr. E. Clay

Griffith, to examine Long regarding the insanity defense and the

special punishment phase issues. Several weeks after these

appointments, Long objected to the appointment of Dr. Grigson,

claiming that he was biased in the state’s favor. After noting

that Long had refused to speak with either Dr. Grigson or Dr.

3
We reject Long’s contention that the harmless error test
enunciated in Brecht v. Abrahamson, 507 U.S. 619 (1993), does not
apply because the Texas Court of Criminal Appeals did not
explicitly apply the more stringent standard outlined in Chapman
v. California, 386 U.S. 18 (1967). See Hogue v. Johnson, 131
F.3d 466, 499 (5th Cir. 1997) (“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.”), cert. denied, 118 S. Ct. 1297 (1998).

8
Griffith, the court appointed Dr. Hester, a psychologist who had

previously been retained by the defense.

Long then filed a motion for a neurological and

neuropsychological examination based on Dr. Hester’s

recommendation. The trial court questioned Dr. Hester

extensively regarding the necessity of this additional testing,

and, after Dr. Hester concluded that although he would recommend

a referral for further testing he was “very doubtful whether a

gross neurological examination would reveal any findings,” the

court denied the defense request.

On collateral review, the Texas Court of Criminal Appeals

rejected Long’s claim that this sequence of events violated

Long’s constitutional rights. The court concluded that the trial

court’s appointment of two psychiatrists to help determine both

Long’s sanity at the time of the murders and the likelihood that

Long would present a continuing threat to society, as well as the

appointment of Dr. Hester, satisfied Ake. Further, the Court of

Criminal Appeals found no error in the trial court’s refusal to

order a neurological examination.

The district court held that Long’s claim that he was

entitled to the services of an independent, and not just neutral,

psychiatrist was barred by the Teague anti-retroactivity

doctrine. See Teague v. Lane, 489 U.S. 288 (1989). According to

the district court, binding precedent at the time Long’s

conviction became final for Teague purposes required only the

appointment of a neutral psychiatrist, whose opinion and

9
testimony were available both to the state and the defendant, in

order to satisfy Ake. Thus, the district court reasoned that

extension of the Ake rule to require the appointment of an

independent psychiatrist, would announce a new rule of

constitutional criminal procedure, and, because it determined

that neither exception applied, would violate Teague.

The district court went on to examine Long’s related claim

that he was entitled to a neurological examination. After

implicitly concluding that Ake does not demand an extensive

neurological examination whenever the defendant’s sanity is

likely to be a significant factor at trial, the court analyzed

whether, based on the evidence before the trial court at the time

it denied Long’s motion for the examination, “the expert

testimony to be obtained is both critical to the conviction and

subject to varying expert testimony,” Goodwin v. Johnson, 132

F.3d 162, 188 (5th Cir. 1998) (internal quotation marks omitted).

The district court reviewed the interaction between Dr. Hester

and the trial court, in which Dr. Hester told the trial court

that he recommended that Long receive neurological testing in

order to determine with “absolute certainty” whether Long

suffered from an organic impairment, but that it was doubtful

that Long suffered neurological damage, and that even if he did,

“it is sometimes very difficult to say that [a neurological

defect] will cause a specific behavior or a specific reaction.”

The district court ruled that Long failed to demonstrate that the

10
lack of an examination was “critical to the conviction,” and

therefore denied habeas relief.

We conclude that reasonable jurists would agree with the

district court’s resolution of both issues. First, neither the

state nor Long objected, at least initially, to the two

psychiatrists appointed by the state to assist the parties in

determining Long’s mental state. Further, although Long claimed

later that Dr. Grigson, one of the appointed psychiatrists, was

biased in favor of the state, Long has never denied that Dr.

Griffith, the other psychiatrist, served as an adequate neutral

psychiatrist. Thus, Long cannot claim that his lack of financial

resources prohibited him from any access to a psychiatrist;

instead, he argues that the constitution requires the state to

pay for an independent, and not simply neutral, psychiatrist to

actively assist in his defense.4

This court rejected such a constitutional requirement in

Granviel v. Lynaugh, 881 F.2d 185, 191-92 (5th Cir. 1989). In

that case, this court discussed a habeas petitioner’s claim that

Texas’s procedure of providing only a neutral, and not

independent, psychiatrist violated Ake. We squarely held that

“the Texas procedure that provides an indigent defendant with the

4
We note, however, that although the record suggests that
Long refused to speak with Dr. Griffith, the record is silent as
to the extent of Dr. Griffith’s participation with the state
(although it is clear that Dr. Griffith did not testify for the
state during Long’s trial). It is therefore at least conceivable
that had Long availed himself of the court-provided access to Dr.
Griffith, Dr. Griffith could have played a more active role in
Long’s defense.

11
assistance of a court-appointed psychiatrist, whose opinion and

testimony is available to both sides, satisfies” the requirements

of Ake. Id. at 191. We rejected the petitioner’s claim in that

case that the failure of the state to provide an independent

psychiatrist merited habeas relief, and, indeed, we are aware of

no binding authority compelling the result that Long now seeks.5

Thus, reasonable jurists would conclude that precedent at the

time Long’s conviction became final would not have dictated that

the trial court appoint an independent psychiatrist, and that the

district court correctly determined that relief on this issue is

foreclosed by Teague.6 See Graham v. Collins, 506 U.S. 461, 467

(1993) (“[U]nless reasonable jurists hearing petitioner’s claim

5
Long relies on a footnote from White v. Johnson, 153 F.3d
197 (5th Cir. 1998), cert. denied, 119 S. Ct. 1048 (1999), as
support for the proposition that this circuit has “questioned”
the applicability of Granviel. However, White only questioned
Granviel’s applicability in situations where the defendant does
not place his or her own mental state at issue. See id. at 200-
01 n.2. Here, as in Granviel, the defendant unquestionably
placed his state of mind at the time of the murders at issue.
Thus, we are not troubled by our suggestion in White that
situations in which a defendant seeks expert assistance only to
counteract the state’s psychiatrist might raise Fifth Amendment
concerns. See id. Moreover, White was not decided when Long’s
conviction became final for Teague purposes.
6
Long argues that several courts had held that Ake required
the appointment of an independent expert before his conviction
became final. In support of this assertion, he cites opinions
from the Seventh, Ninth, Tenth, and Eleventh Circuits. See
Liles v. Saffle, 945 F.2d 333 (10th Cir. 1991); Cowley v.
Stricklin, 929 F.2d 640 (11th Cir. 1991); Smith v. McCormick, 914
F.2d 1153 (9th Cir. 1990); United States v. Fazzini, 871 F.2d 635
(7th Cir. 1989). Even if these cases do hold that a neutral
expert who is not independent from the state cannot satisfy Ake,
a matter on which we do not opine, the trial court in this case
would not have felt bound to apply these cases in the face of
Granviel’s binding precedent.

12
at the time his conviction became final would have felt compelled

by existing precedent to rule in his favor, we are barred from

doing so now.”) (internal quotation marks omitted).

Moreover, we decline to issue Long a CPC to appeal his claim

that the trial court’s failure to order a neurological

examination violated his constitutional rights. Even assuming

arguendo that Ake applies to non-psychiatric experts, a question

that we expressly declined to resolve in Goodwin v. Johnson, 132

F.3d 162, 188 (5th Cir. 1998), we are convinced that any

Ake error was harmless.7 Cf. White v. Johnson, 153 F.3d 197, 201

(5th Cir. 1998) (“Three other circuits have expressly concluded

that Ake error is subject to harmless-error analysis, and we now

join them.”), cert. denied, 119 S. Ct. 1048 (1999). Our review

of the record, especially the interaction between the trial court

and Dr. Hester, convinces us that reasonable jurists would

conclude that the lack of additional neurological testing did not

have a substantial and injurious impact on the jury’s decision in

either the guilt-innocence or punishment phase of Long’s trial.

7
If Ake does not apply to neurological testing, as at least
one district court in addition to the district court has
concluded, see Davis v. Singletary, 853 F. Supp. 1492, 1540 n.39
(M.D. Fla. 1994), aff’d on other grounds 119 F.3d 1471 (11th Cir.
1997), cert. denied, 118 S. Ct. 1848 (1998), we are convinced,
for essentially the same reasons that any Ake error is harmless,
that all reasonable jurists would agree with the district court’s
conclusion that the lack of extensive neurological examination
was not critical to Long’s conviction or the jury’s decision to
answer affirmatively to the special sentencing questions. See
Goodwin, 132 F.3d at 188 (stating to be entitled to non-
psychiatric expert assistance, assistance must be “both critical
to the conviction and subject to varying expert opinion”)
(internal quotation marks omitted).

13
As both the Texas state courts and the district court recognized,

Dr. Hester told the trial court of the low probability that

additional neurological testing would inform the jury’s decision.

Specifically, Dr. Hester stated:

In terms of my diagnosis of the client at this
. . . time, I did not see any gross features which
would indicate neurological damage, which I have cited
in the report.
Furthermore, I would be very doubtful whether a
gross neurological examination would reveal any
findings. In terms of CT scans or EEGs, the likelihood
is that the client will probably come out clean on
these areas.
But if we want to look with absolute certainty
whether or not there is any organic impairment, then
those particular tests would be necessary to make that
determination. It goes one step further that even if
we did find some level of organic impairment, whether
or not that would be a significant issue regarding the
issues before the Court is another issue.

After being asked by counsel if he could “give the Judge any

number as to how much more certainty would be provided” if Long

were tested, Dr. Hester responded:

On two levels. It would give the Court a hundred
percent certainty that there was or was not a
significant organic condition[] operat[ing]. Even if
such an organic condition were found, the Court would
not be [] substantial[ly] enhance[d] in terms of [the]
issue[] before the Court [of whether] that particular
level of impairment would cause the behavior.

Dr. Hester further stated that his findings on the

relationship between any organic damage and behavior “would not

be enhanced by much” given additional neurological testing,

unless that testing were to reveal “major brain damage,” which

Dr. Hester stated was unlikely.

Given these statements by Dr. Hester, the only expert that

recommended the neurological examination, we are comfortable that

14
Long has not made a substantial showing of the denial of a

federal right with respect to this issue. Although Dr. Hester

indicated that he recommended additional testing “in the interest

of being a scientist,” Dr. Hester made it clear that he doubted

that additional testing would have any impact, much less a

substantial impact, on the jury’s decisionmaking process.

Because we are convinced that reasonable jurists would conclude

that the trial court’s denial of Long’s motion for a neurological

examination, if it constituted error, was harmless, we deny Long

a CPC on this issue. See Walker v. Attorney General, 167 F.3d

1339, 1348 (10th Cir. 1999) (concluding that any error resulting

from trial court’s denial of neurological examination was

harmless because “the lack of the additional recommended testing

had no substantial injurious impact on the jury’s decision”).

C. Trial Court’s Failure to Hold a Competency Hearing

Long’s third claim is that because “the trial judge heard a

wealth of evidence raising a bona fide doubt” as to Long’s

competency, the trial judge erred in failing to conduct a

competency hearing pursuant to Pate v. Robinson, 383 U.S. 375

(1966), and Drope v. Missouri, 420 U.S. 162 (1975).

The Texas Court of Criminal Appeals rejected this claim on

collateral review. According to the court:

In the present case, [Long] testified twice at the
guilt-innocence stage of trial; his testimony was
focused and lucid. There was no question that he knew
exactly what he was saying, had accurate recall of the
events surrounding the murders, and was able to
participate in his own defense. That [Long] disagreed
with his attorneys, changed his plea, or said exactly
what he thought about the proceedings as the trial

15
 progressed is not a sign of “incompetency,” despite
counsel’s insistence that applicant is “insane” and
suffers “brain damage.”
In sum, the trial judge was correct in his
determination that there was no need for a competency
hearing in [Long’s] case, nor was there any need for a
jury determination of the issue. There was no
evidence, not even a “scintilla,” that [Long] could not
consult with his attorneys about his defense, or that
[Long] did not understand the nature of the proceedings
against him. . . . No error is shown.

The district court ruled that Long had not rebutted the

presumption of correctness afforded these state court findings of

fact under the pre-AEDPA § 2254(d), and denied relief, concluding

that Long failed in his burden of showing that the trial court’s

failure to hold a competency hearing merited habeas relief.

A trial judge must sua sponte conduct an inquiry into a

defendant’s mental capacity “if the evidence raises a bona fide

doubt as to the defendant’s competency.” Porter v. Estelle, 709

F.2d 944, 949 (5th Cir. 1983). If the trial judge fails to hold

a competency hearing “after receiving sufficient information to

raise a reasonable doubt as to competency, a procedural due

process violation, commonly known as a Pate violation, occurs.”

Wheat v. Thigpen, 793 F.2d 621, 629 (5th Cir. 1986). To prevail

on a Pate claim, a habeas petitioner must make a “clear and

convincing showing of the existence of a real, substantial and

legitimate doubt as to his mental capacity.” Id. (internal

quotation marks and alterations omitted). We generally refer to

three factors in determining whether a petitioner has made such a

showing: the existence of a history of irrational behavior, the

16
defendant’s demeanor at trial, and prior medical opinions. See

Drope, 420 U.S. at 180; Porter, 709 F.2d at 950 n.3.

Long asserts that the trial court should have had a bona

fide doubt about his competency because: (1) Dr. Hester

testified that there was a substantial probability that he was

insane at the time that he committed the murders; (2) he offered

a “bizarre” explanation of the murders; (3) he was on a “self-

destructive mission” to receive the death penalty; (4) he changed

his plea to guilty; and (5) the prosecution, out of “an abundance

of caution,” asked for a competency hearing during the punishment

phase of the trial.

We agree with the district court that Long has failed to

rebut the presumption of correctness that we must afford the

state court findings of fact on this issue.8 These arguments are

insufficient to rebut the state court’s factual finding that

8
We reject Long’s contention that the factual findings made
by the Texas state court cannot be afforded deference under the
pre-AEDPA § 2254(d) because the court simply adopted the state’s
brief as its order. Although Long is correct that “[f]indings
based solely on a paper record are not necessarily entitled to a
presumption of correctness,” Nethery v. Collins, 993 F.2d 1154,
1157 n.8 (5th Cir. 1993), here we apply the presumption because
Long has failed to show that such deference is not appropriate.
We are comforted by the fact that the same trial judge who
presided over Long’s trial considered Long’s state habeas
petition. See Armstead v. Scott, 37 F.3d 202, 207-08 (5th Cir.
1994); see also Cuppett v. Duckworth, 8 F.3d 1132, 1141 n.7 (7th
Cir. 1993) (en banc) (stating that pre-AEDPA § 2254(d)
requirement of hearing on the merits does not “‘specify any
procedural requirements that must be satisfied . . . other than
that the habeas applicant and the State or its agent be parties
to the state proceeding and that the state-court determination be
evidenced by a written finding, written opinion, or other
reliable and adequate written indicia’”) (quoting Summer v. Mata,
449 U.S. 539 (1981)) (internal quotation marks omitted).

17
there was no evidence suggesting that Long was not competent

during his trial. First, although Dr. Hester did testify that it

was possible that Long was insane at the time of the murders,

this testimony did not address Long’s state of mind during the

trial--the only relevant time period under Pate. See McInerney

v. Puckett, 919 F.2d 350, 352 (5th Cir. 1990) (stating that

evidence of petitioner’s incompetency before trial “does not mean

he was incompetent at the time he stood trial”); cf. Medina v.

California, 505 U.S. 437, 449 (1992) (stating that “a plea of not

guilty by reason of insanity . . . presupposes that the defendant

is competent to stand trial”). Similarly, even if it is true

that Long, shortly after he committed the murders, would not

confess to the killings unless he was promised that the state

would seek the death penalty, this does not evidence his mental

state at the time of his trial. Further, Long’s argument that

the trial judge should have been aware of competency issues at

trial because of Long’s “bizarre” explanation of his offense and

his decision to change his plea fails to rebut the presumption of

correctness that we must afford the state court’s finding that

there was no evidence suggesting that Long was incompetent during

his trial. Cf. Autry v. McKaskle, 727 F.2d 358, 362-63 (5th

Cir. 1984) (rejecting claim that petitioner’s desire to abandon

appeal in death penalty case evidenced incompetency); Johnson v.

Estelle, 704 F.2d 232, 239 (5th Cir. 1983) (noting that “a

seemingly irrational crime” does not provide trial court notice

of defendant’s possible incompetency). Lastly, Long’s

18
contentions that the state requested a competency hearing because

of its concerns about Long’s competency and that Long’s own

attorney doubted his competency are belied by a careful review of

the record. It is clear from the record that the state “advised”

the trial judge to conduct a competency hearing only out of an

“abundance of caution.” Moreover, Long’s attorneys stated that

Long was competent to stand trial, even if he was insane when he

committed the killings. The court therefore declined to conduct

a competency hearing, noting that “the Court hasn’t seen any

evidence of incompetency.” We conclude that Long has failed to

rebut the state court’s findings in such a way to convince a

reasonable jurist that he could prevail on his Pate claim, and we

therefore decline to issue Long a CPC.

D. Long’s Competency at Trial

Long’s fourth argument is closely related to his third. He

argues that, in violation of Dusky v. United States, 362 U.S. 402

(1960) (per curiam), he was incompetent to stand trial, and that

he was entitled to an evidentiary hearing in front of the

district court to prove his allegation of incompetence. In light

of our discussion of Long’s Pate claim, we can easily dispose of

Long’s contention that a reasonable jurist could conclude that

Long lacked sufficient present ability to consult with his lawyer

with a reasonable degree of rational understanding or that Long

lacked a rational as well as factual understanding of the

proceedings against him. See id. at 402.

19
 As discussed supra, the Texas Court of Criminal Appeals

endorsed the state trial court’s factual finding that Long was

able to participate in his own defense and that he was not

incompetent at the time of his trial and thus denied habeas

relief to Long on this claim. The district court, as it did for

Long’s Pate claim, relied on these factual findings and concluded

that federal habeas relief was not warranted. Because Long has

provided no evidence of his incompetence rebutting the

presumption of correctness that we must afford the state factual

findings, we must conclude that no reasonable jurist could find

that Long is entitled to collateral relief on this issue.

Accordingly, this issue does not warrant the issuance of a CPC.

Furthermore, the district court did not err in denying Long’s

request for an evidentiary hearing on this issue. The law is

clear that a district court need not hold an evidentiary hearing

where, as here, the record from the state court is adequate to

dispose of the claim. See Weaver v. Puckett, 896 F.2d 126, 127

(5th Cir. 1990); Joseph v. Butler, 838 F.2d 786, 788 (5th Cir.

1988).

E. Penry Claims

Long’s fifth argument is based on Penry v. Lynaugh, 492 U.S.

302 (1989). He argues that the jury was foreclosed from

considering evidence of Long’s abusive childhood and mental

problems as mitigating evidence during the punishment phase of

his trial. Long acknowledges the relevant Penry framework: we

first must determine whether the evidence Long points to is

20
constitutionally relevant mitigating evidence, and, if it is,

then we must consider whether this evidence was beyond the

effective reach of the jurors. See Davis v. Scott, 51 F.3d 457,

460 (5th Cir. 1995). Mitigating evidence is only

constitutionally relevant if it indicates “(1) a uniquely severe

permanent handicap[] with which the defendant was burdened

through no fault of his own, and (2) that the criminal act was

attributable to this severe permanent condition.” Id. at 460-61

(internal quotation marks and citation omitted).

The Texas Court of Criminal Appeals rejected this claim on

habeas review. The court concluded that each of the allegedly

mitigating factors that Long advanced was within the effective

reach of the jury, because, citing Johnson v. Texas, 509 U.S. 350

(1993), there was no reasonable probability that the punishment

phase instructions precluded the jury’s consideration of relevant

mitigating evidence. The district court similarly declined to

grant a writ of habeas corpus to Long on this issue. After

carefully analyzing the allegedly mitigating evidence Long

offered, the court concluded that the jury had not been

foreclosed from considering any constitutionally relevant

evidence in violation of Penry.

We review Long’s Penry claim de novo. See Davis, 51 F.3d at

459; Madden v. Collins, 18 F.3d 304, 306 (5th Cir. 1994). After

due consideration of Long’s contention that the jury could not

properly consider potentially mitigating evidence, we conclude

that Long has failed to make a substantial showing of the denial

21
of a federal right with respect to this issue. Long alleges that

the jury could not give mitigating effect to evidence regarding

his troubled childhood and evidence that he suffered from

alcoholic hallucinosis, paranoid ideations, borderline

personality disorder, and intermittent explosive disorder.

We agree with the district court that Long’s Penry claim

with respect to the evidence concerning his abusive childhood

fails because it is not constitutionally relevant in light of

Madden v. Collins, 18 F.3d 304, 308 (5th Cir. 1994). “[F]or

evidence to have mitigating relevance to the special issues,

there must be a nexus between the mitigating evidence and the

criminal act.” Davis, 51 F.3d at 461. As in Madden, Long

presented no evidence at trial demonstrating such a nexus between

the abuse allegedly suffered by Long as a child and the murders.

See Madden, 18 F.3d at 308 (concluding that petitioner’s Penry

claim based on an abusive childhood failed because petitioner

failed “to produce substantial evidence that his childhood abuse

. . . had such a psychological effect on him that it led to the

criminal act”).

The only evidence that Long presented at trial relating to

his childhood that he linked to the crimes at all was his

sensitivity to smells, which Long’s counsel argued triggered an

intermittent explosive disorder. Dr. Hester testified at Long’s

trial that Long was unusually sensitive to certain odors as a

result of associating “foul odors” with his mother’s death.

However, Dr. Hester refused to expand his diagnosis of Long to

22
include an intermittent explosive disorder, and, significantly,

he did not link this disorder to Long’s crimes. The conclusional

allegation made by Long’s counsel that the murders were triggered

by a smell at the victims’ house that caused an intermittent

explosive disorder is insufficient to persuade a reasonable

jurist that the jury was foreclosed from considering

constitutionally relevant mitigating evidence with respect to his

childhood or with respect to his alleged intermittent explosive

disorder. See Davis, 51 F.3d at 462 (“Needless to say,

conclusory assumptions do not create a nexus.”).

Moreover, with respect to the two other mental disorders

identified by Long, paranoid ideations and a borderline

personality disorder, Long also put forth no evidence during

trial that he either had these disorders or that these disorders

were at all related to his commission of the murders. As the

district court made clear in its opinion denying relief on this

issue, “Dr. Hester did not, as Long now argues, diagnose Long as

having each of the four disorders that he cites in his petition,

or opine that the murders were directly attributable to Long’s

mental illnesses, individually or in some combination.” Rather,

Dr. Hester instead stated that Long had an antisocial personality

disorder,9 and that Long was likely suffering from alcohol

9
Long does not argue that the jury was foreclosed from
considering evidence of his antisocial personality disorder as a
mitigating factor during its sentencing deliberation. We note
that we rejected the proposition that an antisocial personality
disorder could form the basis of a Penry claim in Demouchette v.
Collins, 972 F.2d 651, 653 (5th Cir. 1992).

23
withdrawal at the time of the killings. Long’s claim that the

jury was foreclosed from considering evidence of these disorders

as mitigating evidence thus fails to raise a substantial showing

of the denial of a federal right.

We are also convinced that no reasonable jurist could

conclude that Long’s Penry claim based on his reaction to alcohol

(or lack of alcohol) has merit. First, contrary to Long’s

allegation, Dr. Hester did not conclude that Long suffered from

alcohol hallucinosis. Dr. Hester did testify that it was very

likely that Long was going through alcohol withdrawal on the day

of the murders, and, although he did state that it was a

“possibility” that the withdrawal triggered alcohol hallucinosis,

he would not alter his diagnosis that Long suffered only from an

antisocial personality disorder. Dr. Hester also testified that

Long had control over his choice to drink, and that he developed

a dependency on alcohol through his own actions. As the district

court correctly concluded, this evidence cannot give rise to a

Penry violation, as “self-inflicted chronic drug and alcohol

abuse and the resulting arrested emotional development do not

constitute a unique handicap with which the defendant was

burdened through no fault of his own.” Tucker v. Johnson, 115

F.3d 276, 282 (5th Cir.) (internal quotation marks omitted)

(denying a CPC on petitioner’s Penry claim based on “arrested

emotional development” allegedly caused by alcohol abuse), cert.

denied, 118 S. Ct. 605 (1997).

24
 We are therefore unconvinced that Long has made a

substantial showing of the denial of a constitutional right on

his Penry claim. Despite Long’s assertions to the contrary, Dr.

Hester’s testimony simply does not support Long’s allegation that

he suffered from these psychological ailments, or even if he did,

that these disorders in any way caused Long to commit the

murders. We therefore deny Long a CPC to appeal this issue.

F. Evidence of Additional Murders During Punishment Phase

Long’s final claim is that during the punishment phase of

the trial, the prosecution knowingly relied on false, misleading,

and unreliable evidence concerning two murders that Long

confessed to committing. The prosecution introduced evidence, in

the form of the testimony of investigatory officers and Long’s

confessions, concerning these two unadjudicated murders.

The first murder took place in Bay City, Texas in 1983.

Deputy Sheriff Nickey Don Hale testified concerning Long’s

alleged involvement in this murder during the punishment phase.

Hale testified that Long was initially arrested for this murder,

that there was no physical evidence to prove that Long started

the fire that killed the victim, and that “the case was never

tried due to the lapse of time.” Long argues that the

prosecution knowingly allowed misleading testimony concerning

this murder because it knew that a grand jury had refused to

indict Long for this murder on two separate occasions.

The state habeas court denied relief on this issue. The

Texas Court of Criminal Appeals concluded that, in light of the

25
fact that Long’s confession to the Bay City murder was properly

introduced during the punishment phase, any possible false

testimony concerning the reasons that the case was never

prosecuted was immaterial. The district court agreed, and,

deferring to the trial court’s unrebutted factual finding that

Long was competent when he confessed to the Bay City murder and

that the confession was voluntary, denied relief.

Although it is true as a general rule that “the State is not

permitted to present false evidence or allow the presentation of

false evidence to go uncorrected,” Moody v. Johnson, 139 F.3d

477, 484 (5th Cir.) (citing Giglio v. United States, 405 U.S.

150, 153 (1972)), cert. denied, 119 S. Ct. 359 (1998), a habeas

petitioner may not prevail on such a claim unless he or she

demonstrates that (1) the testimony was actually false, (2) the

state knew it was false, and (3) the testimony was material, see

Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir. 1996). Testimony

is not material in this setting unless there is a “reasonable

likelihood” that the false evidence could “have affected the

judgment of the jury.” Giglio, 405 U.S. at 154 (internal

quotation marks omitted).

It is uncontested that Long confessed to the Bay City

murder. Although Long now claims that the only reason that he

confessed was his desire to receive the death penalty, Long has

offered no evidence in any form suggesting that the state knew

that the confession was false, or even that the confession was

26
false.10 Thus, a reasonable jurist could only conclude, as did

the able district judge, that Long’s confession to the Bay City

murder did not violate Long’s due process rights. Further, in

light of the fact that the jury heard Long confess to the Bay

City murder, we are convinced that Long has not made a

substantial showing that the question of why Long was not

prosecuted for this crime was material, i.e., that had the jury

known that Long had not been prosecuted because the grand jury

refused to indict him, there was a reasonable likelihood that its

answers to the special punishment issues would have been

different. We therefore decline to issue Long leave to appeal

this issue.

The prosecution also presented evidence during the

punishment phase of Long’s trial regarding a murder that occurred

in San Bernadino, California, in November 1978. Again, the state

introduced testimony concerning the murder and the jury also

heard a police officer read Long’s confession to the murder.

Long objects to a portion of the officer’s testimony in which he

testified that he was unaware whether Long’s fingerprints were

discovered at the scene and that he was unaware whether a witness

had given a physical description of the murderer. Long claims

that the prosecutor was fully aware an eyewitness had provided

10
Before the district court, Long requested an evidentiary
hearing to establish the truth of his assertion that a grand jury
had refused on two occasions to indict him for the Bay City
murder. Long did not specifically refer to any facts that would
create a factual issue that the prosecution knew that his
confession was false.

27
the San Bernadino police with a physical description of the

murderer that did not match Long and that Long’s fingerprints

were not found at the crime scene.

Long did not raise this claim in his state habeas petition.

He argued to the district court that his failure to raise this

claim was based on the state court’s refusal to allow additional

time for his new habeas attorney to prepare his habeas petition

and because an assistant district attorney impeded his efforts to

investigate the San Bernadino murder. The district court

concluded that these factors were insufficient to demonstrate

cause for Long’s failure to exhaust his state court remedies and

therefore ruled that Long had procedurally defaulted this claim.

We are inclined to agree with the district court’s reasoned

conclusion that Long has failed to allege sufficient facts to

excuse his failure to bring this claim to the state courts. We

address it, however, because Long’s contention so clearly lacks

merit. See Glover v. Hargett, 56 F.3d 682, 684 (5th Cir. 1995).

We note that although Long argues that an evidentiary hearing is

warranted on this issue, like the Bay City murder discussed

supra, he claims only that the specific statements concerning the

physical description and fingerprints are false, not that his

confession was false.

It is abundantly clear that reasonable jurists would

conclude that this claim lacks merit for substantially the same

reasons as his claim regarding the Bay City murder. Again, the

jury heard Long’s confession to the San Bernadino murder, so the

28
testimony regarding Long’s fingerprints and whether an eyewitness

had given a physical description of the assailant were clearly

immaterial in light of the confession. Moreover, the testifying

officer did not state that no physical description of the

assailant was given; when asked if he obtained such a

description, the officer merely replied that “I never interviewed

anybody at the scene. I was busy doing the diagram and taking

measurements of the location, so I didn’t talk to anybody out

there.” The testifying officer’s statement regarding whether

Long’s fingerprints were present at the scene was also

circumscribed--the officer only stated that, to his knowledge,

Long’s fingerprints were not found. We therefore conclude, as we

did with regard to the testimony concerning the Bay City murder,

that no reasonable jurist could conclude that the state elicited

material testimony that it knew to be false with respect to the

San Bernadino murder. Long has failed to make a substantial

showing of a due process violation, and we decline to issue a

CPC.

III. CONCLUSION

For the foregoing reasons, we DENY Long’s application for a

CPC.

29