UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-10054
_____________________
JAMES EDWARD CLAYTON,
Petitioner-Appellant,
versus
GARY JOHNSON, Director, Texas
Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(1:98-CV-201)
_________________________________________________________________
October 1, 1999
Before KING, Chief Judge, HIGGINBOTHAM and BARKSDALE, Circuit
Judges.
PER CURIAM:*
James Edward Clayton, sentenced to death for capital murder,
requests a certificate of appealability (COA) from denial of his
habeas application. DENIED.
I.
The Texas Court of Criminal Appeals affirmed Clayton’s 1988
conviction and death sentence for the 1987 murder of Lori Barrett,
which, inter alia, included kidnaping. Clayton v. State, No.
70,764 (Tex. Crim. App. Jan. 27, 1993) (unpublished). The Supreme
*
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this opinion should not be published and is not precedent except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.
Court of the United States denied certiorari. Clayton v. Texas,
510 U.S. 853 (1993).
In December 1997, the trial court entered findings of fact and
conclusions of law, recommending that state habeas relief be
denied; the Court of Criminal Appeals denied relief in January
1998, holding that the findings and conclusions were supported by
the record.
Clayton sought federal habeas relief that September. The
district court denied it and a COA.
II.
The Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-32, 110 Stat. 1214 (AEDPA) applies, because Clayton
filed his federal habeas petition subsequent to its enactment, see
Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997).
Accordingly, the district court having denied a COA, Clayton must
obtain it from our court. 28 U.S.C. § 2253(c)(1)(A).
A COA requires “a substantial showing of the denial of a
constitutional right”, 28 U.S.C. § 2253(c)(2): “the applicant
[must] ‘demonstrate 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’”. Drinkard v. Johnson, 97 F.3d
751, 755 (5th Cir. 1996) (emphasis in original; quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)), cert. denied, 520 U.S. 1107
(1997), overruled in part on other grounds, Lindh v. Murphy, 521
U.S. 320 (1997).
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For a state prisoner, such as Clayton, habeas relief may not
be granted under AEDPA
with respect to any claim that was adjudicated
on the merits in State court proceedings
unless the adjudication of the claim —
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was
based on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d).
“[P]ure questions of law and mixed questions of law and fact
are reviewed under § 2254(d)(1), and questions of fact are reviewed
under § 2254(d)(2)”. Corwin v. Johnson, 150 F.3d 467, 471 (5th
Cir.), cert. denied, ___ U.S. ___, 119 S. Ct. 613 (1998). As
noted, and pursuant to § 2254(d)(1), in reviewing a question of
law, we defer to the state court’s ruling, unless its “decision
rested on a legal determination that was contrary to ... clearly
established federal law as determined by the Supreme Court”. See
Lockhart v. Johnson, 104 F.3d 54, 57 (5th Cir.) (internal quotation
marks and citation omitted), cert. denied, 521 U.S. 1123 (1997).
Likewise, we “will not disturb a state court’s application of law
to facts unless the state court’s conclusions involved an
‘unreasonable application’ of clearly established federal law as
determined by the Supreme Court”. Davis v. Johnson, 158 F.3d 806,
812 (5th Cir. 1998) (quoting 28 U.S.C. § 2254(d)(1)), cert. denied,
___ U.S. ___, 119 S. Ct. 1474 (1999); Lockhart, 104 F.3d at 57.
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Such “application of federal law is unreasonable only when
reasonable jurists considering the question would be of one view
that the state court ruling was incorrect”. Davis, 158 F.3d at 812
(internal quotation marks and citation omitted). And, for §
2254(d)(2) (unreasonable determination of facts vel non), state
court factual findings are presumed correct unless rebutted by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see Davis,
158 F.3d at 812.
Clayton contests applying these AEDPA standards of review. In
any event, he claims COA entitlement on each of the following
bases: (1) his rights under Ake v. Oklahoma, 470 U.S. 68 (1985),
were violated, based on his assertions (a) that his court-appointed
pathology expert was incompetent and (b) that his court-appointed
psychiatric expert, Dr. Griffith, testified against him at the
punishment phase on future dangerousness; (2) the State failed to
present sufficient venue evidence; (3) prosecutorial misconduct
deprived him of a fair trial; (4) the State knowingly concealed
exculpatory evidence; (5) his Fourth Amendment rights were
violated; and, (6) contrary to Estelle v. Smith, 451 U.S. 454
(1981), he was not warned that the results of psychiatric
examinations could be used against him at the punishment phase.
A.
In rejecting AEDPA’s standards of review, Clayton asserts that
his claims were not “adjudicated” by the state courts. For those
claims raised on direct appeal, he maintains that the factual basis
for the Court of Criminal Appeals’ decision was incorrect, and that
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it cited facts not in the record. For those claims raised for
state habeas, he maintains that the result was unreliable,
asserting that the state courts failed to follow applicable
procedures, including denying him discovery, investigative
assistance, and an evidentiary hearing, and adopting the State’s
proposed findings and conclusions, without giving him an
opportunity to challenge them.
In determining whether a state court’s habeas disposition is
on the merits, we consider 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 adjudicating the case on the
merits; and (3) whether the state courts’
opinions suggest reliance upon procedural
grounds rather than a determination on the
merits.
Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999) (quoting Green
v. Johnson, 116 F.3d at 1121).
The merits of Clayton’s claims regarding Dr. Griffith’s
testimony, venue, and the Fourth Amendment were adjudicated on
direct appeal. For habeas, although the state trial court
concluded that, therefore, those claims should not be relitigated
in post-conviction proceedings, it nevertheless addressed them on
the merits.
Likewise, with respect to the remaining habeas claims
(incompetent pathology expert, prosecutorial misconduct,
concealment of exculpatory evidence, and lack of warnings by the
psychiatrists), the trial court concluded that those issues “should
not be considered” because they could have been, but were not,
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raised on direct appeal. But, it also addressed them on the
merits.
Accordingly, we conclude that AEDPA’s standards of review are
applicable to the state courts’ merits determinations. Based on
our review of the record and the briefs, Clayton’s procedural
complaints concerning the state courts do not alter this
conclusion.
B.
In Ake v. Oklahoma, 470 U.S. 68, the Supreme Court discussed
situations in which a criminal defendant is entitled to the
appointment of a competent psychiatric expert to conduct an
appropriate examination and to assist in evaluation, preparation,
and presentation of the defense. Clayton maintains that his Ake
rights were violated in two ways: his court-appointed pathologist
was incompetent; and his court-appointed psychiatrist testified
against him at the punishment phase.
1.
Dr. Erdmann was Clayton’s court-appointed pathology expert at
trial (cause and site of death). Relying on evidence discovered in
the ten years since trial, including that Dr. Erdmann falsified
autopsy reports, lied about his credentials and background, and was
convicted of tampering with evidence during his tenure as a medical
examiner, Clayton contends that Dr. Erdmann was not competent to
assist him.
Clayton did not raise this issue on direct appeal. In the
state habeas proceeding, the trial court found that there was no
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reason to doubt Dr. Erdmann’s qualifications at the time of
Clayton’s trial; that his assistance was beneficial to Clayton; and
that Clayton had not shown that Dr. Erdmann’s involvement was
harmful.
Assuming both that Ake applies not only to psychiatrists, but
also to pathology experts, see Yohey v. Collins, 985 F.2d 222, 227
(5th Cir. 1993) (“non-psychiatric experts ... should be provided
only if the evidence is ‘both “critical” to the conviction and
subject to varying expert opinion’”) (quoting Scott v. Louisiana,
934 F.2d 631, 633 (5th Cir. 1991)), and that it can be applied to
this habeas claim, see Teague v. Lane, 489 U.S. 288 (1989), Clayton
does not explain how Dr. Erdmann’s misconduct subsequent to that
trial had any bearing on his performance at that trial. Nor does
Clayton cite any specific instance in which Dr. Erdmann’s
assistance to him was incompetent or how any claimed incompetence
was harmful. See Fuller v. Johnson, 114 F.3d 491, 496-97 (5th
Cir.), cert. denied, ___ U.S. ___, 118 S. Ct. 399 (1997); Boyle v.
Johnson, 93 F.3d 180, 186 (5th Cir. 1996), cert. denied, 519 U.S.
1120 (1997).
Because Clayton has not made a substantial showing of the
denial of a constitutional right, his COA request on this claim
fails.
2.
Clayton contends that Dr. Griffith, a forensic psychiatrist,
was appointed as a defense expert, but testified as a witness for
the State at the punishment phase, in violation of his due process
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rights under Ake. Ake holds that, “in the context of a capital
sentencing proceeding, when the State presents psychiatric evidence
of the defendant’s future dangerousness ...[,] due process requires
[that the defendant be provided with] access to a psychiatric
examination on relevant issues, to the testimony of the
psychiatrist, and to assistance in preparation at the sentencing
phase”. 470 U.S. at 84.
On 22 February 1988, prior to trial, the State moved for a
psychiatric examination of Clayton regarding future dangerousness.
At a hearing on 1 March, Clayton’s counsel requested appointment of
a separate psychiatric expert for the defense. On 11 March, the
trial court appointed Dr. Grigson, who reported to the court on 1
April that Clayton was a severe sociopath and that there was a
probability that he would commit criminal acts of violence in the
future.
That July, the court entered an order, upon “motion of the
Defendant”, appointing Dr. Griffith to examine Clayton and report
to the court on Clayton’s mental competency to stand trial and his
sanity at the time of the offense. The court further ordered, “at
the Defendant’s request”, that Dr. Griffith report to the court on
Clayton’s future dangerousness.
At the punishment phase, after it had presented the testimony
of Dr. Grigson on future dangerousness, the State called Dr.
Griffith as a witness. Clayton made a narrow objection, asserting
only that Dr. Griffith was an agent of the defense and had
consulted with Clayton and his counsel; and that allowing him to
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testify would violate the attorney-client privilege. (In short,
Clayton’s counsel did not object that Clayton was being deprived of
his rights under Ake.) The State countered that Dr. Griffith was
not an agent of the defense; and that the attorney-client privilege
was not applicable.
Although it overruled the objection, the court ruled that Dr.
Griffith would not be allowed to testify about conversations with
Clayton or his counsel. In response to a hypothetical question
based on the facts of Clayton’s case (not objected-to as to form),
Dr. Griffith testified that the hypothetical individual probably
would commit acts of violence in the future. Next, Dr. Griffith
was examined by Clayton’s counsel regarding the prospects for
rehabilitation of such a hypothetical individual.
The Court of Criminal Appeals rejected this claim on direct
appeal, holding that Dr. Griffith was not a defense expert; that
instead, he was an appointed psychiatrist for the court. Clayton
v. State, slip op. at 26-27. The court stated further that he did
not testify regarding communications with Clayton or his counsel,
or Clayton’s future dangerousness, but responded instead to a
hypothetical, albeit one based on the facts of this case. Id. at
27.
Likewise, in the state habeas proceeding, the trial court
found that Dr. Griffith was not appointed as an expert witness for
Clayton. It concluded, inter alia, that he testified only by
response to hypothetical questions; and that his testimony did not
violate the attorney-client privilege because he did not disclose
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confidences or information gleaned from his examination of Clayton.
Clayton fails, especially in the light of his narrow objection
at trial, to articulate, much less demonstrate, how his rights
under Ake were violated. In any event, he is not entitled to a COA
on this issue: he has not demonstrated by clear and convincing
evidence that the state courts erred by finding that Dr. Griffith
was not a defense expert; and he has not made a substantial showing
that the state courts’ legal conclusions were contrary to, or
involved an unreasonable application of, federal law.
C.
Clayton asserts that the State presented no evidence that
venue was proper in Taylor County, Texas, where Clayton and the
victim had resided in close proximity; that, instead, it was proper
in Jones County, where the victim’s body was found; and that,
therefore, his Sixth and Fourteenth Amendments rights were
violated.
This claim was rejected on direct appeal, on the basis that
sufficient evidence supported the jury’s finding that the crime, or
some portion of it, occurred in Taylor County (again, where the
victim and Clayton resided). Clayton v. State, Slip Op. at 5-8.
The state habeas court also rejected the claim, finding that some
of the elements of the offense (burglary, robbery, and kidnaping)
occurred there.
Clayton has not made a substantial showing that the state
courts’ factual findings are unreasonable or that their legal
conclusions are contrary to, or involved an unreasonable
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application of, federal law. The State presented considerable
evidence that at least a portion of the crime was committed in
Taylor County, including a neighbor’s testimony that she heard
screams coming from the victim’s home on the night she disappeared;
the coroner’s testimony that the victim was tied with electrical
cords while still alive; evidence of the discovery of an electrical
cord in Clayton’s apartment and a curling iron missing its
electrical cord in the victim’s home; the discovery of an earring
and a pair of shoes in the victim’s home and a belt in a dumpster
near Clayton’s apartment, matching what the victim had worn on the
night of her disappearance; the discovery in Clayton’s apartment of
an insurance card bearing the victim’s name; and evidence of forced
entry into the victim’s home.
Because Clayton has not made a substantial showing of the
denial of a constitutional right, he is not entitled to a COA on
this issue.
D.
Clayton’s claim that prosecutorial misconduct denied his right
to a fair trial is premised on the fact that the first attorney
appointed to represent him withdrew upon being appointed a state
judge, and was subsequently employed by the district attorney’s
office. Because of that conflict, the trial court disqualified the
district attorney’s office and appointed as a special prosecutor
Taylor County’s former district attorney (who held that office at
the time of Clayton’s arrest), who had resigned to run for state
judge. (The disqualification was later ruled to be an abuse of
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discretion. State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex.
Crim. App. 1990).)
Clayton asserts that the special prosecutor’s previous role as
district attorney, his political agenda, his use of an office in
the district attorney’s offices, and his use of the services of
Clayton’s former counsel’s investigator to interview jurors,
“constituted a conflict of interest on the part of all parties
involved”, and deprived him of a fair trial.
Clayton did not raise this issue on direct appeal. For state
habeas, the trial court found that no prosecutorial misconduct
occurred, and concluded that Clayton was not harmed by any of the
challenged conduct.
Clayton has not rebutted the presumption of correctness of
these factual findings, and has not made a substantial showing that
the legal conclusions were contrary to, or involved an unreasonable
application of, federal law. The special prosecutor’s use of an
office and telephone near Clayton’s former counsel, and the use of
the services of Clayton’s former counsel’s investigator, do not
establish an impermissible conflict. Moreover, even assuming such
a conflict exists, Clayton has not shown how he was prejudiced.
See United States v. Cardenas, 778 F.2d 1127, 1130-32 (5th Cir.
1985).
Because Clayton has not made a substantial showing of the
denial of a constitutional right, he is not entitled to a COA on
this claim.
E.
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Clayton next claims that the trial court and prosecutors
denied him access to exculpatory evidence. He gave statements to
police that, on the night and morning following the victim’s
disappearance, someone whom he knew only as “Andy” was with him and
the victim at his residence. Clayton requested any information
obtained by the State in its investigation of “Andy”; the State
responded that it had no exculpatory evidence.
Therefore, Clayton asked the court to review the information
in camera. Clayton asserts that the record does not reveal whether
the court did so; and that the court did not make such evidence
part of the record on appeal.
Clayton did not raise this claim on direct appeal. In the
state habeas proceedings, the state trial court rejected the claim,
holding that the State did not conceal exculpatory evidence
regarding “Andy”; and that evidence regarding “Andy” was turned
over by the State to the court and was not exculpatory.
Clayton has not rebutted the presumption of correctness of the
state court’s factual findings, and has not made a substantial
showing that its legal conclusions were contrary to, or involved an
unreasonable application of, federal law. The purported evidence
about “Andy” originated from Clayton’s own statements to the
police. Clayton does not even assert that any exculpatory evidence
exists; he asserts, without explanation, that he “has reason to
believe that there was more evidence regarding ‘Andy’ than was
turned over to the defense, and possibly to the judge for
inspection”.
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Obviously, such speculation falls far short of the required
substantial showing of the denial of a constitutional right.
Clayton is not entitled to a COA on this issue.
F.
Clayton contends that his warrantless arrest was illegal under
Texas law and that, therefore, his statements to the police and all
of the evidence seized from his apartment, including the murder
weapon, should have been suppressed.
“[W]here the State has provided an opportunity for full and
fair litigation of a Fourth Amendment claim, a state prisoner may
not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was
introduced at his trial”. Stone v. Powell, 428 U.S. 465, 494
(1976). Clayton does not claim, nor does the record reflect, that
he did not have a full and fair opportunity in state court to
litigate this Fourth Amendment claim.
Accordingly, Clayton is not entitled to a COA on this claim
because he has not made the requisite substantial showing of the
denial of a constitutional right.
G.
Clayton was examined pre-trial by the two earlier-described
psychiatrists, Drs. Grigson and Griffith. At the punishment phase,
Dr. Grigson testified that he was absolutely certain that Clayton
would be involved in future criminal acts that would present a
threat to society. And, as discussed, Dr. Griffith testified, in
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response to the hypothetical question, that, in the future, the
hypothetical individual probably would commit acts of violence.
A criminal defendant has a constitutional right to be informed
that statements made during a court-ordered psychiatric examination
can be used against him at the punishment phase on the issue of
future dangerousness. Vanderbilt v. Collins, 994 F.2d 189, 196-98
(5th Cir. 1993) (citing Estelle v. Smith, 451 U.S. 454 (1981)).
Lacking such warning, “the subsequent use of the [psychiatrist’s]
testimony against [the defendant] for that purpose [is] a violation
of his fifth amendment rights”. Id. Clayton contends that there
is “no evidence” he was so warned.
Clayton did not raise this claim on direct appeal. In the
state habeas proceeding, the state trial court found that Clayton
had not shown a lack of such warnings and did not so object at
trial; and held that the claim was procedurally barred because
Clayton failed to object.
Clayton has made no attempt to overcome this bar. See Coleman
v. Thompson, 501 U.S. 722, 750 (1991) (when “a state prisoner has
defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of
justice”); Corwin v. Johnson, 150 F.3d at 473 (Texas’
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“contemporaneous objection rule” is strictly and regularly applied
to similar claims and is, therefore, an adequate procedural rule).
In any event, Clayton does not claim that the requisite
warnings were not given, only that there is no evidence that they
were. The state trial court found that Clayton had not
demonstrated that warnings were not given. Clayton has not
rebutted that finding by clear and convincing evidence.
Clayton is not entitled to a COA on this claim.
III.
For the foregoing reasons, Clayton’s COA application is
DENIED.
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