REVISED - September 18, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10934
JEFFREY HENRY CALDWELL,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Application for Certificate of Appealability and Stay of
Execution from the United States District Court
For the Northern District of Texas, Dallas Division
August 30, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Today we examine Texas’s response to the decision of the
Supreme Court1 that the Constitution forbids the execution of an
insane person. Securing this “right” turns the focus from validity
of conviction and sentence with its search for historical fact to
an inquiry into the present mental state of an accused, more
precisely his present mental state, and at a point of time in the
1
Ford v. Wainwright, 477 U.S. 399 (1986).
near future. This elevation to constitutional status of common law
and statutory rules and resulting shift in focus has prompted
responses by the state and a procrustean enterprise of the
judiciary to fit Ford issues within our procedural apparatus for
post-trial review of conviction and sentence.2 That fit is the
backdrop to today’s decision. We conclude that Texas has afforded
the petitioner all process constitutionally due. We refuse to
issue a certificate of appealability or to stay the scheduled
execution.
I
Jeffrey Henry Caldwell is scheduled to be executed on August
30, 2000, by the State of Texas for the crime of capital murder.
The Texas Court of Criminal Appeals affirmed his conviction and
sentence in 1991. Caldwell v. State, 818 S.W.2d 790 (TEX. CRIM. APP.
1991), cert. denied, 112 S.Ct. 1684 (1992). Caldwell first sought
federal habeas relief, but his petition was dismissed without
prejudice for failure to exhaust state remedies by the Northern
District of Texas on September 9, 1993. Caldwell then filed a
post-conviction application in the state trial court in November of
1993. That application was denied in 1994 by Judge Gerry Meier of
the 291st District Court in Dallas County, Texas. A second post-
conviction application was filed with Judge Meier on March 22,
1995. She denied relief on March 30, 1995. The Texas Court of
2
See e.g., Stewart v . Martinez-Villareal, 118 S. Ct. 1618
(1998), and Art. 46.04, TEX. CODE OF CRIM. PROC.
2
Criminal Appeals affirmed that denial of relief on March 31, 1995.
II
On May 30, 1995, Caldwell filed a petition for writ of habeas
corpus in the Northern District of Texas, asserting numerous
claims. The district court denied all relief in January of 1999,
declining Caldwell’s motion for leave to amend the petition to
include a claim under Ford v. Wainwright. On February 18, 1999, we
granted a certificate of probable cause to appeal but affirmed the
denial of relief on all claims and also affirmed the refusal of
leave to amend. We concluded that Caldwell’s Ford claim was
premature, pointing out that the Texas legislature had recently
provided a procedure for testing the competency of a person to be
executed under Article 46.04 of the Texas Code of Criminal
Procedure, effective September 1, 1999. On April 11, 1999, the
trial court scheduled Caldwell’s execution for August 30, 2000.
The Supreme Court denied certiorari and a stay of execution on
August 23, 2000.3
III
On June 28, 2000, the State of Texas filed with Judge Meier a
“Request for Psychiatric Examinations and Determination of
Competency,” pursuant to the Texas Code of Criminal Procedure,
Article 46.04.
The State’s motion cited occasions in which Caldwell’s
3
Justice Stevens and Justice Ginsburg would have granted the
stay for execution.
3
competency had surfaced over the course of this prosecution. It
observed that, while Caldwell did not offer a defense during the
punishment phase, the State had called a psychiatrist who,
responding to a hypothetical question, expressed the opinion that
Caldwell was a sociopath. The witness explained that Caldwell knew
right from wrong but chose to do wrong.
The State also pointed to the affidavit of Dr. Phillip J.
Murphy, obtained in connection with the first application for writ
of habeas corpus filed in the state trial court in 1993. In the
affidavit Dr. Murphy swore that his preliminary examination
demonstrated serious mental illness that could only be conclusively
determined through further examination and testing; that he was
unable to do so without funding.
Dr. Murphy expressed the view that “the defendant’s reality
level was best described as psychotic”; that his Bender-Gestalt
test indicated brain damage; that while he needed additional tests,
execution may not be appropriate for a person with these disorders.
The State pointed out that Caldwell in his first State
petition had claimed that his counsel was ineffective for not
investigating and offering evidence of his mental problems; that
the trial court should have instructed the jury regarding a severe
mental disorder. The State observed that the defendant raised the
same issues in his second federal writ and that the district court,
affirmed by this court, had rejected the claims of ineffective
assistance of counsel.
4
In its motion of June 28 the State took the position that the
prosecution did “not believe that the defendant is suffering from
any mental disorders rendering him incompetent to be executed,” but
that “as a precautionary measure,” the district court ought to
appoint two qualified mental health professionals to evaluate his
mental competence. Without opposition from Caldwell, the district
court granted the motion on August 9, 2000. It appointed two
psychiatrists to examine Caldwell. Both reported back to the
district court that Caldwell did not cooperate and refused to
confer with them.4
IV
Caldwell filed an application for state writ of habeas corpus
on August 16, claiming he is not competent and requesting funding
to obtain mental health experts of his own choosing. As summarized
in the State’s response:
In raising his claim of incompetency to be executed in
the state courts, Caldwell relied upon a 1992
psychological evaluation performed by Philip Murphy and
a 1998 affidavit of one of his attorneys, Peter
MacMillan. Without addressing the issue of competency to
be executed (or to stand trial), Dr. Murphy was of the
opinion that Caldwell possessed a low I.Q., suffers from
organic brain damage, and presents a “serious thought
4
Judge Meier appointed Dr. James Grigson and Dr. Michael Pitman
to evaluate Caldwell’s competency to be executed. Caldwell asserts
that he objected to the failure to appoint an “independent”
professional and Dr. Grigson as being well known for his bias. We
accept counsel’s unchallenged assertion that an objection was made,
although we have been pointed to nothing in the record supporting
it.
5
disorder of either a paranoid or schizophrenic nature.”
MacMillan averred that correspondence he had received
from Caldwell indicated to him that Caldwell failed to
appreciate the factual basis that led to his conviction
and the severity of the punishment for his crime.
On August 18, Judge Meier filed a “notation of subsequent writ
application,” concluding that:
This Court further finds that to the extent applicant’s
current subsequent writ application could be construed as
a motion pursuant to Article 46.06 of the Texas Code of
Criminal Procedure, the pleadings fail to make a
substantial showing of Caldwell’s incompetency to be
executed as required by Article 46.04(f).
She then directed that the Clerk of the Court forward the relevant
papers to the Texas Court of Criminal Appeals.
V
Caldwell’s counsel then filed with the Texas Court of Criminal
Appeals his “subsequent application for writ of habeas corpus,
motion for appointment and compensation of counsel, and motion for
funding for mental health experts.” On August 28, a divided Texas
Court of Criminal Appeals dismissed by written opinion Caldwell’s
application.
The court treated Caldwell’s motion as an effort to invoke the
procedures of Article 46.04. It first noted that Article 46.04
made no provision for the appointment of counsel, holding that
while the “trial court could appoint counsel in any given case,” it
did not abuse its discretion here. The court explained it had
neither the authority to remand for a hearing nor authority to
grant funds to hire mental health experts to assist in the hearing.
6
By the Texas Court of Criminal Appeal’s reading, it had authority
under Art. 46.04 only to review a finding by the trial court that
a defendant is incompetent; it had no jurisdiction to review a
“finding of a substantial showing of incompetence or, after a
hearing takes place, the finding that the defendant is competent to
be executed.”
Caldwell then filed a petition for writ of habeas corpus and
stay of execution on August 29, 2000, with the United States
District Court, Northern District of Texas. The return to federal
court relies upon the Supreme Court’s decision in Stewart v.
Martinez-Villareal, 118 S.Ct. 1618 (1998) that “respondent’s Ford
claims here – previously dismissed as premature – should be
treated in the same manner as the claim of a petitioner who returns
to a federal habeas court after exhausting state remedies,” 118
S.Ct. at 1622 - specifically that his Ford claim is not a
successive petition. Texas concedes that the present petition is
not successive.5
VI
Caldwell’s federal petition combines several contentions in a
single narrative. As best we can discern, read most favorably to
Caldwell, he attacks Article 46.04 on six grounds. He contends
that, as construed by the Texas Court of Criminal Appeals, there is
5
Given the late hour and our disposition of this case, we do
not here question this concession and will assume that the petition
is not successive.
7
no right of appeal from a decision by a state trial court finding
a petitioner to be competent for execution. Second, that the
statute both facially and as applied denies Caldwell his right “to
be evaluated by mental health professionals of his own choosing.”
Third and relatedly, he contends that since Caldwell is indigent,
he would be unable to hire such assistance and hence he is entitled
to state funding for that purpose. Fourth, that Texas denied him
the assistance of medical experts in preparing for his competency
hearing and offering both expert advice and testing. Fifth, he
broadly contends that since his Ford claim has never been
determined on the merits by any court, he is entitled to a hearing
in federal court. Finally, Caldwell appears to question the state
trial court’s holding that he did not make a substantial showing of
competency.
VII
The United States District Court for the Northern District of
Texas denied a stay of execution and application for certificate of
appealability on August 30, 2000. Judge Sanders concluded that
petitioner had been dilatory in pursuing his Ford claims. He also
concluded that the merits of the petition did not support a stay,
specifically that the federal court was required to defer to the
factual finding of the state trial court. Finally, the district
court did not reach the constitutional claims but questioned “the
lack of meaningful judicial review in § 46.04(k).
VIII
8
1
A state prisoner may not obtain relief 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) (2000). Section 2254(d)(1) provides the
standard of review for questions of law and mixed questions of law
and fact. Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000).
Under the “unreasonable application” clause, the court may
grant the writ if the state court identifies the correct governing
legal principle but applies it incorrectly, or expands a legal
principle to an area outside the scope intended by the Supreme
Court. See id. at 1521, 1523. The state court’s application of
the law must be “unreasonable” in addition to being merely
“incorrect.” See id. at 1522. “Stated simply, a federal habeas
court making the ‘unreasonable application’ inquiry should ask
whether the state court’s application of clearly established
federal law was objectively unreasonable.” See id. at 1521.
Under the “contrary to” clause of § 2254(d)(1), a federal
court may grant the writ if the state court has arrived at a
conclusion opposite to that reached by the Supreme Court on a
9
question of law, or if the state court decides a case differently
than the Supreme Court on a set of materially indistinguishable
facts. See id. at 1523.
On review of a state prisoner’s federal habeas petition, “a
determination of a factual issue made by a State court shall be
presumed to be correct,” and the petitioner “shall have the burden
of rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1). A certificate of appealability
may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(b)(2).
“When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional
claim, a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack v. McDaniel,
120 S. Ct. 1595, 1604 (2000).
2
Caldwell points us to no authority in support of his
contention that he is entitled to appellate review in the state
court of the trial court decision that he is competent. We know of
no such authority. The constitutional footing for rights of appeal
from criminal conviction has enjoyed an uneven history, initially
resting on principles of equal protection. Of course, since the
10
absence of appellate review is across the board, no petitioner can
appeal; there is no footing for an equal-protection-based right of
access for indigents. To the extent a right of appeal is footed
directly upon the assurance of a fair process in determining guilt
and sentence, we see no principled basis for its extension to a
determination by the state judiciary of the issue of competence for
execution. Regardless, we lack the authority to do so in a habeas
case.
Caldwell points to Ake v. Oklahoma, 470 U.S. 68 (1985), in
support of his contention that he is entitled to medical assistance
of his own choosing. The extension of Ake principles to a Ford
hearing on competency to be executed aside, Ake itself disavowed
any such right. Id. at 83.
His assertion that he is entitled here to Ake’s assured access
to medical assistance in evaluating and preparing a defense has
more purchase, but ultimately is equally without merit. Ake v.
Oklahoma held that an indigent criminal defendant who demonstrates
“that his sanity at the time of the offense is to be a significant
factor at trial” has a due process right to “a competent
psychiatrist who will conduct an appropriate examination and assist
in evaluation, preparation, and presentation of the defense.” Id.
This right extends to the sentencing phase of trial. It did not by
its terms or reasoning extend to a Ford type hearing. Safeguards
rooted in the Constitution’s protection of a fair and accurate
trial are not necessarily implicated by Eighth Amendment
11
prohibitions of cruel and unusual punishment. In Ford v.
Wainwright, Justice Powell emphasized this distinction: “[T]he only
question raised is not whether, but when, his execution may take
place. This question is important, but it is not comparable to the
antecedent question whether petitioner should be executed at all.
It follows that this Court’s decisions imposing heightened
procedural requirements on capital trials and sentencing
proceedings do not apply in this context.” 477 U.S. at 425
(citations and footnote omitted).
Under 46.04 Judge Meier was not required to appoint medical
experts absent a substantial showing by Caldwell, a showing
Caldwell conceded he could not make assertedly for want of funds to
engage medical assistance. Judge Meier, however, proceeded to
appoint two experts. Caldwell did not object to the appointment of
experts. Rather, he objected to the fact that Dr. Grigson was one
of the two experts chosen. Then Caldwell refused to allow either
of the two to examine him.
3
All else aside, there are overarching flaws in Caldwell’s
request for stay of execution. Caldwell is in no position to claim
that Texas has prejudiced his ability to trigger the appointment
under Art. 46.04 of two medical experts to examine his competency.6
6
To the extent Caldwell challenges the state trial judge’s
holding that he had not made a substantial showing of incompetence,
the challenge is without merit – even if we were not to accord that
finding the deference it is due.
12
That was done. Nor does he point to any impediment imposed by the
state to an adversarial test of the experts’ reports. Ultimately,
Caldwell’s claim shrinks to claims that he was entitled to an
expert of his choice or an expert to assist in any challenge of the
opinion of the experts. This is no more and no less than a request
that Ake be extended to Ford proceedings. In any event, such a new
rule is not available in his federal habeas challenge to a state
decision. Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989); 28
U.S.C. § 2254(d)(1).
We are persuaded that Art. 46.04 is valid, both facially and
as applied. We reject a certificate of appealability and refuse to
stay execution.
13