UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-50940
_____________________
ALVA CURRY,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(1:98-CV-318)
_________________________________________________________________
July 18, 2000
Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Alva Curry, sentenced to death for capital murder, requests a
certificate of appealability (COA) from denial of his habeas
application. The request is DENIED.
I.
The Texas Court of Criminal Appeals affirmed Curry’s 1992
conviction and death sentence for murder in the course of
*
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this opinion should not be published and is not precedent except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.
committing a robbery. Curry v. State, 910 S.W.2d 490 (Tex. Crim.
App. 1995).
In March 1998, the trial court entered findings of fact and
conclusions of law, recommending denial of state habeas relief.
The Court of Criminal Appeals denied relief that May, based on
those findings and its review of the record.
Curry sought federal habeas relief that August. The
application was referred to a magistrate judge, who recommended
that the State be granted summary judgment. The report and
recommendation, to which Curry did not object, was adopted by the
district court. It treated Curry’s notice of appeal as a motion
for a COA, and denied it in November 1999. In March 2000, Curry
filed his COA request here.
II.
Only Curry’s sentence is at issue. The Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-32, 110 Stat.
1214 (AEDPA) applies, because the federal application was filed
subsequent to its enactment. See Green v. Johnson, 116 F.3d 1115,
1119-20 (5th Cir. 1997). The district court having denied a COA,
Curry must obtain it here. 28 U.S.C. § 2253(c)(1)(A).
A COA is granted if there is “a substantial showing of the
denial of a constitutional right”. 28 U.S.C. § 2253(c)(2). Curry
must demonstrate that “reasonable jurists could debate whether ...
the petition should have been resolved in a different manner or
- 2 -
that the issues presented were adequate to deserve encouragement to
proceed further”. Slack v. McDaniel, ___U.S.___, 120 S. Ct. 1595,
1603-04 (2000)(internal quotation marks and citation omitted).
For a state prisoner, such as Curry, 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).
Normally, for deciding whether such relief (as opposed to a
COA) should be granted, “pure 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, 525 U.S. 1049 (1998). Here,
however, Curry failed to object to the magistrate judge’s report
and recommendation. Pursuant to our supervisory powers, we may
limit appellate review for such failure. See Thomas v. Arn, 474
U.S. 140, 155 (1985).
In this circuit, the failure to so object limits appellate
review to plain error, if the party has been so warned. See
- 3 -
Douglass v. United States Automobile Ass’n, 79 F.3d 1415, 1430 (5th
Cir. 1996) (en banc). The magistrate judge warned, however, that
such failure would limit appellate review of factual findings to
“clear”, rather than “plain”, error and would not limit the
appellate court’s review of legal conclusions.
Assuming that this forfeiture rule applies to ruling on a COA
request, the rule does not apply, because the correct warning was
not given. Curry does not challenge the findings of fact.
Accordingly, as discussed in part II.B., we review the presented
issues of law in the light of the “contrary to” and “unreasonable
application of” standards found in § 2254(d)(1).
“[A] decision [is] contrary to ... clearly established Federal
law”, § 2254(d)(1), “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable facts”.
Williams v. Taylor, ___ U.S. ___, 120 S. Ct. 1495, 1523 (2000).
And, there is an “unreasonable application of ... clearly
established Federal law”, § 2254(d)(1), “if the state court
identifies the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case”. Id.
Curry disputes applying AEDPA’s standards of review, claiming
the state habeas court did not conduct a full and fair review of
- 4 -
his constitutional claims. In any event, he claims COA entitlement
on each of the following bases: (1) due process was denied,
because the trial and state habeas courts refused to allow
reasonable funds for expert testimony; (2) equal protection was
denied, because the trial court denied his requested instruction
that a life sentence would require his serving at least 35 years;
(3) the Texas death penalty statute is unconstitutional, because
the jury’s decision on mitigation is not subject to meaningful
appellate review; (4) the prosecutor’s comments during voir dire
undermined the jurors’ sense of responsibility; and (5) his trial
counsel was ineffective regarding mitigation and future
dangerousness.
A.
To support his claim that we should not defer to the state
habeas findings and conclusions, 28 U.S.C. §§ 2254(d)-(e)(1), Curry
notes an evidentiary hearing was not held on his ineffective
assistance claims.
“But, [a] full and fair hearing does not necessarily require
live testimony. We have repeatedly found that a paper hearing is
sufficient to afford a petitioner a full and fair hearing”. Murphy
v. Johnson, 205 F.3d 809, 816 (5th Cir.), petition for cert. filed,
(U.S. 31 Mar. 2000)(No. 99-10268). Moreover, the state habeas
court reviewed Curry’s lead trial counsel’s affidavit concerning
- 5 -
his reasons for making certain decisions and whether he rendered
ineffective assistance.
B.
At issue is whether to grant a COA, not whether to grant
habeas relief. But, obviously, in applying the earlier described
standard for whether to grant a COA on any of the issues presented,
we must keep in mind AEDPA’s hurdles for obtaining habeas relief.
As discussed infra, and for essentially the reasons stated in the
magistrate judge’s report and recommendation adopted by the
district court, Curry v. Johnson, No. 1:98-CV-318 (W.D. Tex. 30
Sep. 1999), Curry has not made, for any of those issues, the
requisite “substantial showing of the denial of a constitutional
right”, as required by § 2253(c)(2).
1.
Claimed denial of due process at the trial’s punishment phase
is based on the trial court’s refusing to appropriate reasonable
funds to counter the State’s expert on future dangerousness. That
court provided Curry $1,000 to retain an expert. Counsel retained
Dr. Marquart, who testified that future dangerousness could not be
reliably predicted.
In an affidavit in support of Curry’s federal habeas
application, trial counsel stated that, had adequate funds been
available, he “would have been [also] able to retain a psychiatric
expert”. In an affidavit given in the state habeas proceeding,
- 6 -
however, trial counsel stated that, given the nature of the case,
he retained Dr. Marquart, because he would be more helpful than a
psychiatrist on the future dangerousness issue.
Curry does not cite to the record where trial counsel
requested, and was denied, additional funds for experts.
Furthermore, he points to no authority for his proposition that he
is entitled to state funds for expert witnesses during his habeas
proceeding.
2.
The claimed equal protection denial is premised on the trial
court’s refusing Curry’s requested instruction that a life
imprisonment sentence would require his serving 35 years. Under
our precedent, however, such refusal in Texas is constitutional.
Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994), cert. denied,
514 U.S. 1108 (1995).
3.
The claimed unconstitutionality of the Texas death penalty
statute springs from the jury’s verdict on the mitigation special
issue supposedly not being subject to meaningful appellate review.
This issue is cursory and not properly briefed. Therefore, it is
deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993).
4.
- 7 -
The prosecutor’s comments during voir dire are claimed to have
undermined the jury’s sense of responsibility in answering the
special issues. This issue was not presented to the state courts
on either direct or collateral review. Accordingly, it has not
been exhausted, is procedurally barred under the Texas abuse of the
writ doctrine, and is correspondingly not cognizable in federal
habeas proceedings. See Fuller v. Johnson, 158 F.3d 903, 906 (5th
Cir. 1998), cert. denied, 526 U.S. 1133 (1999); 28 U.S.C. § 2254
(b)(1)(A)(failure to exhaust state remedies).
5.
To succeed on any of his three ineffective assistance claims,
Curry must demonstrate counsel’s performance was deficient, and
this prejudiced his defense, such that there is a reasonable
probability the trial’s result would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
a.
Concerning failing to investigate and present evidence of
mitigation at the punishment phase, trial counsel stated, in his
affidavit: a “number of relatives, friends, teachers and religious
advisers were interviewed”; and, “[b]ased on these interviews
[,counsel] made the decision to use the persons [he] felt would
make the most effective witnesses”.
Furthermore, the affidavit of Curry’s wife (common law)
claiming that she requested to meet with Curry’s counsel, but was
- 8 -
unable to schedule an appointment, primarily negates the testimony
of her mother that Curry had threatened to kill the mother and had
struck his wife. Moreover, the wife stated her mother’s testimony
was false. And, if called, the wife would have been subject to
cross-examination on Curry’s drug use and her knowledge of his
criminal history. The decision not to call her, because of the
double-edged nature of her testimony, is not deficient performance.
West v. Johnson, 92 F.3d 1385, 1409 (5th Cir. 1996), cert. denied,
520 U.S. 1242 (1997).
b.
Regarding not using available funds to obtain an appropriate
expert to counter the State’s on future dangerousness, counsel
elected, as noted, to retain Dr. Marquart to testify that it was
not possible to reliably predict such conduct. This was a
strategic decision and is “virtually unchallengeable”. Vega v.
Johnson, 149 F.3d 354, 361 n.5 (5th Cir. 1998), cert. denied, 525
U.S. 1119 (1999).
c.
Concerning not obtaining a hearing, outside the presence of
the jury, to determine the admissibility of the State’s experts’
future dangerousness testimony, psychiatric testimony concerning
such conduct is admissible. See Barefoot v. Estelle, 463 U.S. 880,
896-905 (1983). The failure to request a hearing to determine the
- 9 -
admissibility of testimony the Supreme Court has ruled is
admissible is not deficient performance.
III.
For the foregoing reasons, a COA is
DENIED.
- 10 -