IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-10248
__________________________
WILLIAM WESLEY CHAPPELL,
Petitioner-Appellant,
versus
JANIE COCKRELL, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
___________________________________________________
Appeal from the United States District Court
For the Northern District of Texas
(No. 4:00-CV-1663-A)
___________________________________________________
April 29, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM*:
A Texas jury convicted Petitioner-Appellant William Wesley
Chappell of the capital murder of Alexandra Heath and recommended
a death sentence. Chappell now seeks from this court a certificate
*
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that this opinion should not be published and is not precedent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.
1
of appealability (“COA”) to appeal from the district court’s denial
of habeas corpus relief. Because his claims lack merit under the
requisite standards, we deny Chappell’s request.
I.
FACTS AND PROCEEDINGS
The Court of Criminal Appeals described the evidence presented
at Chappell’s trial as follows:
[Chappell] was charged with murdering Alexandra
Heath in the course of committing or attempting to commit
burglary of a building owned by her mother, Martha
Lindsey, with the intent to (1) commit the felony offense
of retaliation against Lindsey or her husband, Elbert
Sitton, or (2) commit the theft of property belonging to
Lindsey or Sitton. Heath, Lindsey, and Sitton were all
killed inside Lindsey’s home.
The evidence illustrates that [Chappell] had a
strained relationship with Lindsey, Sitton, and their
daughter, Jane Sitton —— Alexandra’s half-sister.
[Chappell], who was then 43 or 44 years old, and Jane,
who was then 14 or 15 years old, began dating in 1981 or
1982 and stopped seeing each other in 1983 or 1984. In
May 1984, [Chappell] was indicted for molesting Jane’s
daughter. Lindsey had reported the offense to the
police. In May 1987, [Chappell] was found guilty of one
count of indecency with a child and was sentenced to five
years’ confinement. [Chappell] was released on bond
pending appeal.
After the indecency trial, the Lindsey/Sitton family
congregated outside the courtroom. When [Chappell] came
out, he informed Lindsey that “it wasn’t over yet” and
that “he would get her for that.” [Chappell] related
this threat to his then-wife Sally Hayes, denied
molesting Jane’s daughter and said that Lindsey and the
Sittons were after his money.1 [Chappell] stated that he
1
“Lindsey had filed a civil suit against him on behalf of
Jane’s daughter.” Chappell v. State, No. 72,666, slip op. at 5
n.6 (Tex. Crim. App. Oct. 13, 1999) (unpublished) (en banc)
(unanimous).
2
wanted to “do away” with the Lindsey/Sitton family.
In January 1988, Hayes drove [Chappell] to Lindsey’s
home, where Elbert and Jane also resided. [Chappell] had
purchased some gasoline and put it in jugs. Hayes let
[Chappell] out near Lindsey’s home and drove around for
fifteen minutes. When [Chappell] signaled her with his
flashlight, she picked him up. [Chappell] no longer had
all of the jugs and said that he had set fire to
Lindsey’s house. [Chappell] became upset when he later
learned that the home suffered relatively little damage
and that none of the occupants were injured.
In February 1988, [Chappell] and Hayes went to a gun
show. Hayes testified that she purchased a 9-mm gun for
[Chappell] and [Chappell] purchased some ammunition, an
extra barrel, a spring, and a “small round thing with
holes in it” that fit over the barrel of the gun.
Thereafter, [Chappell] began working on a silencer for
the gun. Hayes testified that [Chappell] tested this
device at some property he had in Montague County. In
March 1988, [Chappell] and Hayes purchased two walkie-
talkies at a Radio Shack.
In April 1988, [Chappell] settled an unrelated
personal-injury suit against a church and received a
cashier’s check for $66,000. That same month, [Chappell]
and Hayes went to Hornbeak, Tennessee, where Hayes owned
a house. [Chappell] brought $60,000 of his settlement to
put into certificates of deposit in hopes of preventing
the Lindsey/Sitton family from getting it. Hayes
testified that [Chappell] planned to return to Texas and
the Lindsey home in order to kill anyone who happened to
be in it.
On May 3, 1988, [Chappell] and Hayes left Tennessee
at 10:30 a.m. in a gray, burgundy, and black van. They
arrived in Fort Worth around 8:30 p.m. and stopped at a
grocery store on North Main Street. While Hayes went
into the store, [Chappell] changed into dark clothing,
makeup, and a wig. [Chappell] also had a black ski mask,
brown gloves, and a nylon tote bag containing a walkie-
talkie, the 9-mm gun, a pistol, the silencer, clips for
the guns, a crowbar, and wire cutters.
Sometime after 9:00 p.m. Hayes let [Chappell] out of
the van near Lindsey’s home. Hayes then drove around the
neighborhood waiting for [Chappell] to contact her by
walkie-talkie. Fifteen to twenty minutes later,
3
[Chappell] contacted Hayes, and she picked him up. When
he got into the van, [Chappell] stated that he had “shot
Jane, her mother, and her daddy.” He also said that he
had taken some money to make it look like a robbery. The
pair then drove back to Tennessee, where they disposed of
as much evidence as possible. [Chappell] was shocked
when he later learned that it was not Jane, but her half-
sister, Alexandra Heath, whom he had killed.
Heath was shot several times while lying in bed and
died at the scene. Before his death, Sitton told a Fort
Worth police officer that an intruder wearing a ski mask
had confronted Sitton and Lindsey in their bedroom, where
they had been watching television. After Lindsey
complied with the intruder’s demand for money, the
intruder shot the couple several times. Lindsey died two
days later. Sitton, who survived for two months in the
hospital, was able to tell the emergency room physician
that he believed the intruder was the same man who raped
his daughter or granddaughter.2
During the fourteen years since the occurrence of these
events, the state has tried Chappell three times for the killing of
Alexandra Heath; in two of the trials, juries found him guilty of
capital murder and returned sentencing verdicts that require the
death sentence. Chappell was first tried and sentenced for the
murder in 1989. On direct appeal, however, the Texas Court of
Criminal Appeals reversed the judgment and remanded for a retrial
on the ground that the trial judge had erred by permitting the
venire to be shuffled twice.3 Chappell’s second trial resulted in
a mistrial after the court granted his supplemental motion for a
2
Id. at 4–7. “Dr. Sirous Partovi, the emergency room
doctor, could not remember whether Sitton said ‘daughter’ or
‘granddaughter.’” Id. at 7 n.7.
3
Chappell v. State, 850 S.W.2d 508, 511, 513 (Tex. Crim.
App. 1993).
4
continuance. In 1996 Chappell’s third trial ended as had the
first: the jury convicted him of capital murder and, in the
punishment phase, determined that his conduct was deliberate, that
he would probably threaten society with future violent crimes, and
that there were not enough mitigating circumstances to justify a
life sentence as opposed to death. Given these determinations,
Texas law required that the trial court sentence Chappell to death.
This time, the Texas Court of Criminal Appeals affirmed.4
In 1999, while Chappell’s state appeal was pending, he began
habeas proceedings. Both the state district court and the Court of
Criminal Appeals refused the requested writ.5 The federal district
court then denied Chappell’s applications for a writ of habeas
corpus6 and a COA. Chappell timely applied to us for a COA. We
have jurisdiction over his application under 28 U.S.C. §§ 1291 and
2253.7
II.
ANALYSIS
A. Standard for Granting a COA
4
See Chappell, No. 72,666, slip op. at 17.
5
See Ex parte Chappell, No. 42,780-01 (Tex. Crim. App. Nov.
24, 1999) (unpublished) (en banc) (per curiam); Ex parte
Chappell, C-2-4249-0365173-A (Tarrant Co. Crim. D. Ct. No. 2,
Sept. 7, 1999).
6
Chappell v Johnson, No. 4:00-CV-1663-A, 2001 U.S. Dist.
LEXIS 1057, at *24 (N.D. Tex. Feb. 6, 2001).
7
See also FED. R. APP. P. 22(b).
5
The Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”)8 provides that, for this court to review a district
court’s denial of habeas relief to a state prisoner, we must first
issue a COA.9 This, in turn, we cannot do unless a petitioner
makes “a substantial showing of the denial of a constitutional
right,”10 which means that a petitioner must demonstrate that
“reasonable jurists could debate whether . . . the petition should
have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.”11 This “reasonable jurists” standard is an objective one;
it does not ask whether every single one of the Nation’s jurists
has reached or would reach the same conclusion.12
As we apply this standard in a capital case, “the nature of
the penalty is a proper consideration . . . but the severity of the
penalty does not in itself suffice to warrant the automatic issuing
of a certificate.”13 This said, we generally resolve any
8
Pub. L. No. 104-132, 110 Stat. 1214 (1996). Chappell
applied for a federal writ on December 26, 2000. AEDPA therefore
governs his application.
9
See 28 U.S.C. § 2253(c)(1)(A) (1994 & Supp. V 1999).
10
28 U.S.C. § 2253(c)(2) (1994 & Supp. V 1999).
11
Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (internal
quotation marks and citations omitted) (citing Barefoot v.
Estelle, 463 U.S. 893, 894 & n.4 (1998)).
12
Williams v. Taylor, 529 U.S. 362, 410 (2000).
13
Barefoot, 463 U.S. at 893; Slack, 529 U.S. at 483 (“Except
for substituting the word ‘constitutional’ for the word
6
uncertainty about the propriety of granting a COA in the
petitioner’s favor.14 The petitioner’s showing, however, cannot be
merely conclusional, and must be supported by evidence in the
record.15
Chappell’s application requires that we note two further
distinctions within this general standard of review.
1. Merits versus Procedure
First, the Supreme Court counsels that if the district court
rejects a petitioner’s constitutional claims on the merits, then he
“must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
wrong.”16 If the district court denies a habeas petition on
procedural grounds, however, a COA should issue only if the
petitioner “shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of a denial of
a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
‘federal,’ § 2253 is a codification of the CPC standard announced
in Barefoot.”).
14
Moore v. Johnson, 225 F.3d 495, 500–01 (5th Cir. 2000),
cert. denied, 121 S. Ct. 1420 (March 26, 2001).
15
Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983)
(“[M]ere conclusory [sic] allegations do not raise a
constitutional issue in a habeas proceeding.”).
16
Slack, 529 U.S. at 484.
7
ruling.”17 In evaluating such a showing, we need not analyze the
procedural issue first. Rather, we may answer the constitutional
question if that would hasten a fair disposition of the case,18 even
though the Ashwander constitutional-avoidance canon should “inform”
our discretion in so doing.19
2. Facts versus Law
Second, if a state court adjudicated a state prisoner’s claim
for a writ of habeas corpus on the merits, federal courts view the
petitioner’s claim through the “lens” of the scheme laid out in 28
U.S.C. § 2254(d).20 Under this scheme, with respect to questions
of fact, we are not to grant a writ of habeas corpus unless the
state court’s adjudication on the merits “resulted in a decision
that was based on an unreasonable determination of the facts in the
light of the evidence presented in the State court proceeding.”21
And in any federal habeas proceeding involving a state prisoner,
leaving aside the distinction between procedural and merits-based
17
Id. (emphasis added).
18
Id. at 485 (“Each component of the § 2253(c) showing is
part of a threshold inquiry, and a court may find that it can
dispose of the application in a fair and prompt manner if it
proceeds first to resolve the issue whose answer is more apparent
from the record and arguments.”).
19
Id. (citing Ashwander v. TVA, 297 U.S. 288, 347 (1936)
(Brandeis, J., concurring)).
20
Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000),
cert. denied, 121 S. Ct. 902 (Feb. 7, 2001).
21
28 U.S.C. § 2254(d)(2) (1994 & Supp. V 1999).
8
denials, “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.”22
Likewise, if a state court has resolved on the merits an issue
of law or a mixed issue of law and fact, we are not to grant a writ
unless the resulting decision was “contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States.”23 A decision
is “contrary to” established federal law if the state court
“applies a rule that contradicts the governing law set forth in
[Supreme Court] cases” or if the state court decides a case
differently than the Supreme Court did on “materially
indistinguishable” facts.24 A state court “unreasonably applies”
clearly established federal law if it “correctly identifies the
governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case.”25
22
See 28 U.S.C. § 2254(e)(1) (1994 & Supp. V 1999).
23
28 U.S.C. § 2254(d)(1) (1994 & Supp. V 1999).
24
Williams, 529 U.S. at 405–06.
25
Id. at 407–08. See also Neal v. Puckett, 2002 WL 407382,
*3–4 (5th Cir.); id. at *13 (“In the absence of clear guidance
from the Supreme Court, we conclude that our focus on the
‘unreasonable application’ test under Section 2254(d) should be
on the ultimate legal conclusion that the state court reached and
not on whether the state court considered and discussed every
angle of the evidence.”).
9
With this statutory scheme firmly in mind, we examine the six
issues on which Chappell seeks a COA from us. He asserts that
(1) because the State based much of its case on the
testimony of one accomplice-witness, the evidence did not
sufficiently support Chappell’s capital murder conviction;
(2) the evidence did not sufficiently support the jury’s
finding of future dangerousness;
(3) the trial judge unconstitutionally excluded hearsay
evidence of another death row inmate’s “admissions” to having
murdered Heath;
(4) the trial court violated Chappell’s right to a fair
trial when it denied his challenge for cause of a prospective
juror;
(5) the trial court violated Chappell’s right to a fair
trial in refusing to instruct the jury on the parole
implications of a life sentence; and
(6) the State denied Chappell a meaningful appeal by not
giving him timely access to the record, reasonable access to
the prison law library, and adequate time to prepare his
direct appeal.
We shall address each issue in turn.
B. Sufficiency of the Evidence to Convict
Chappell first seeks a COA on his claim that the evidence
against him was insufficient to convict him. The district court
held that this claim was procedurally barred and, alternatively,
10
that it failed on the merits. We conclude that the procedural
ruling would be debatable among reasonable jurists; but, as we
shall show, the district court’s merits holding would not. We
therefore deny a COA on this issue.
1. Procedure
In federal court, Chappell has clearly asserted that the
evidence was constitutionally insufficient to support his capital
murder conviction. In state habeas proceedings, he framed this
argument more narrowly, as a challenge to the evidence
corroborating, and thus justifying the admission of, the testimony
of his then-wife, a crucial accomplice-witness. In making this
argument, he clearly invoked both the United States and Texas
Constitutions, as well as the State’s accomplice-witness statute.
On direct state appeal, in which he appeared pro se, however,
Chappell’s argument was much more garbled. The first two points of
error in his state appellate brief essentially contend that the
evidence did not support his conviction,26 but his somewhat
incoherent legal argument was largely couched in terms of the law
of parties. He mentioned insufficiency only twice,27 although the
second of these passages did plead insufficiency in the
26
This portion of his appellate brief devoted eight pages to
comparing the inculpatory and exculpatory evidence.
27
He first stated that “Appellant submits, that it’s
questionable, if, the sufficiency of the evidence raised to a
level of a party, to the offense.”
11
alternative.28
A two-step procedural problem arises. First, the State urges
that if Chappell had presented a broad insufficiency claim on state
habeas, the state courts would have rejected it as procedurally
barred.29 Under Texas law, sufficiency claims not appealed are
defaulted, and cannot be raised in state habeas proceedings.30 To
whatever extent Chappell failed to plead insufficiency on direct
appeal, however, the state habeas courts did not apply the
procedural bar. Rather, the habeas court adopted thirteen findings
of fact and fourteen conclusions of law with respect to this claim,
and the Court of Criminal Appeals agreed with the habeas court’s
reasoning.31
28
“Appellant contends that if the error is to be considered
‘trial error’ then jeopardy’s rule [sic] would bar retrial.
However, if the error is considered insufficiency, the Texas
Rules of Appellant [sic] Procedure, former Rule 81(c), new Rule
43.3(a), mandate[ ] an acquittal ordered in either scenario.”
29
Chappell, No. 72,666, slip op. at 2 (“[Chappell],
appearing pro se, . . . does not raise a challenge to the
sufficiency of the evidence.”).
30
Brown v. Collins, 937 F.2d 175, 178 (5th Cir. 1991); Clark
v. Texas, 788 F.2d 309, 310 (5th Cir. 1986) (“Under Texas law,
both the questions of the sufficiency of the evidence and of the
propriety of a jury charge may be raised on direct appeal but not
in a habeas proceeding.”).
31
Ex parte Chappell, No. 42,780-01 at 2. The substance of
the order of the Court of Criminal Appeals reads as follows:
[Chappell] presents six allegations challenging the
validity of his conviction and resulting sentence. The
trial court has entered findings of fact and conclusions of
law recommending the relief sought be denied.
This Court has reviewed the record. The trial court’s
12
The problem encountered at the second step of this analysis is
that, even assuming Chappell’s claim would not have been
procedurally barred, he cannot raise it here in precisely the same
terms that he did in the state habeas proceedings. The accomplice-
witness rule32 of Texas, which requires the State to corroborate
testimony of an accomplice-witness, is a creature of state criminal
procedure and is not cognizable with respect to a federal habeas
petition claim.33 The district court therefore concluded, and the
State argues on appeal, that Chappell cannot, in federal habeas
proceedings, transmute the narrower claim that he did pellucidly
raise in state habeas proceedings —— his challenge to the
sufficiency of corroborating evidence —— into a broader challenge
to the constitutional sufficiency of the evidence to convict.
We are not persuaded that Chappell never couched his state-
court habeas claim in federal terms. Both state courts were
certainly “alerted to the fact that the prisoner[ was] asserting
findings and conclusions are supported by the record and
upon such basis the relief sought by the applicant is
denied.
Id. Because this order refers to the trial court’s findings and
conclusions, it qualifies as an adjudication on the merits
entitled to deference under the AEDPA. Trevino v. Johnson, 168
F.3d 173, 181 (5th Cir. 1999).
32
See TEX. CODE CRIM. PRO. ART. 38:14.
33
See Brown, 937 F.2d at 182 n.12 (“The [federal]
Constitution imposes no requirement that the testimony of an
accomplice witness be corroborated by independent evidence.”).
13
claims under the United States Constitution,”34 because the caption
of Chappell’s first state habeas claim read as follows:
The trial court violated [Chappell’s] right to due process of
law as guaranteed by Article I, Section 19 of the Texas
Constitution and the Fifth and Fourteenth Amendments to the
United States Constitution in denying applicant’s motion for
instructed verdict and in imposing sentence in this case
because there was no corroboration of Ms. Hayes’[s] testimony
. . . .35
Chappell thus “fairly presented to the state courts the substance
of his federal habeas corpus claim.”36
Yet, even if Chappell did not plead his broader federal
constitutional claim in the state courts, our jurisprudence permits
us to take cognizance of his sufficiency-of-corroboration argument
as a federal sufficiency claim.37 Chappell therefore did exhaust
in the state courts the first claim he raises here. And, although
a federal court may raise, even sua sponte, a state procedural bar
34
Duncan v. Henry, 513 U.S. 364, 365–66 (1995) (per curiam).
35
Chappell’s Application for Post-Conviction Writ of Habeas
Corpus (filed May 21, 1999) at 35. Also, in describing his
claim, Chappell contended that “the prosecution was so defective
as to amount to a fundamental denial of due process as guaranteed
him under Article I, Section 19 of the Texas Constitution and the
Fifth and Fourteenth Amendments to the United States
Constitution.” Id. at 42.
36
Anderson v. Harless, 459 U.S. 4, 6 (1982) (internal
quotation marks omitted).
37
See Brown, 937 F.3d at 178–79 (“In our view, the instant
challenge to the sufficiency of the evidence was subsumed within
Brown’s sufficiency claim [regarding corroboration of testimony
by the accomplice-witness] on direct appeal. This is not a case
like Clark v. Texas, 788 F.2d at 310, in which the petitioner
failed to raise a sufficiency challenge altogether.”).
14
that the state habeas courts did not apply,38 we find, on a close
call, that whether Chappell raised this claim on direct appeal is
debatable among reasonable jurists. We therefore pretermit
procedural considerations and determine whether Chappell makes a
substantial showing of a constitutional violation.39
2. Merits
For us to issue a COA on the merits of Chappell’s sufficiency
claim, he must at least show that reasonable jurists could debate
the district court’s alternative merits denial.40 This he has
doubly failed to do.
a. No Substantial Showing
First, the district court ruled that Chappell had failed to
point to any specific defect in the evidence and that the
conclusional allegations in his petition were insufficient to
entitle him to habeas relief. We agree that Chappell’s vague and
conclusional allegations, standing alone, are plainly inadequate.
His application to us, like his pleading in the district court,
recites the legal standards, describes the district court’s
holding, and then merely states the following:
38
Magouirk v. Phillips, 144 F.3d 348, 357–58 (5th Cir.
1998).
39
We may deny a writ on the merits even if the petitioner’s
claim is unexhausted. See 28 U.S.C. § 2254(b)(2) (1994 & Supp. V
1999) (“An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.”).
40
Slack, 529 U.S. at 484.
15
Petitioner-Appellant believes that whether the state
sustained its burden to present sufficient evidence is
debatable among jurists of reason and, further, a
different court could resolve this issue in a different
manner than the District Court did. Therefore, this
issue meets the requirements of Barefoot and this Court
should issue a Certificate of Appealability allowing the
appeal of this issue to proceed.
Such an unsupported assertion falls well short of the substantial
showing of the denial of a constitutional right that Chappell must
make for us to grant a COA on his sufficiency claim.41 We are
satisfied that the district court could have denied collateral
relief on this ground alone.
b. The Evidence Was Sufficient
Out of an abundance of caution, however, we have followed the
district court’s lead and carefully examined the record evidence in
this case. And, like the district court, we conclude that the
state habeas court’s findings of fact and conclusions of law with
respect to the accomplice-witness testimony firmly establish that
Chappell has failed to make a substantial showing with respect to
the sufficiency of the evidence to convict, likely because such a
showing is simply not possible here. Chappell has no
constitutional ground on which to base his insufficiency claim.
The standard of review in habeas proceedings of a claim of
insufficient evidence is “whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of
41
See Ross, 694 F.2d at 1011–12 (applying this principle
pre-AEDPA).
16
fact could have found the essential elements of the crime beyond a
reasonable doubt.”42 If we were to apply this standard, we would
make all reasonable inferences and credibility determinations in
support of the verdict.43 Here, to secure a verdict, the State was
required to prove, as essential elements, that Chappell (1)
intentionally caused the death of Alexandra Heath (2) in the course
of committing or attempting to commit burglary by entering a
building without the effective consent of its owner and therein
committing a felony —— either theft or retaliation.44
As the state habeas court summarized in the following findings
of fact, not only did the accomplice-witness give damning testimony
against Chappell, but other evidence and witnesses corroborated her
testimony, point by point.
2. Sally Hayes, [Chappell’s] wife and accomplice,
testified that:
a. On May 3, 1988, she and [Chappell] drove from
Tennessee to Fort Worth in a gray, burgundy,
and black Dodge van, arriving around 8:30 p.m.
b. [Chappell] changed into black pants, a navy
sweatshirt, a black jacket, black makeup, and
black wig; he carried a black nylon tote bag
with a walkie-talkie, 9mm gun, silencer,
crowbar, and snippers inside, and a black ski
mask.
c. Sometime after 9:00 p.m., she let [Chappell]
out of the van near the Lindsey-Sitton home
42
Jackson v. Virginia, 443 U.S. 307, 309 (1979) (emphasis
original).
43
Id.
44
TEX. PENAL CODE ANN. §§ 19.02 (murder), 19.03 (capital
murder), 30.02(a)(1) (burglary), 36.06(a)(1) (retaliation)
(Vernon 1994).
17
and then drove around the neighborhood waiting
for him to contact her by walkie-talkie.
d. About 15–20 minutes later, she received
[Chappell’s] call and went to 22nd Street to
pick him up, where he told her that he “shot
Jane, her mother and daddy.”
[3]. After his conviction for indecency with a child,
[Chappell] threatened Martha Lindsey that “it wasn’t over
yet” and that he “would get her for that.” [testimony of
Vickie Lynn Belt]
[4]. On March 23, 1988, [Chappell] purchased two walkie-
talkies from Radio Shack. [testimony of Scott Andrew
Wetmore]
[5]. On May 2, 1988, [Chappell] told Lillie Cunningham
that he was returning to Texas the next day. [testimony
of Lillie Summers Cunningham]
[6]. On May 3, 1988, a white man wearing a ski mask
entered the home of Martha Lindsey and Elbert Sitton and
fired several shots. [testimony of Lieutenant Thomas
Carl Swan, who related what the wounded Elbert Sitton
told him in the hospital; Sitton also testified that the
masked man demanded money, which Lindsey gave him]
[7]. After the shooting, Kevin Barrington, the victims’
neighbor, saw a figure wearing all dark clothes.
[testimony of Kevin Barrington]
[8]. About the same time, Mike Torres observed a white
man walking down 22nd Street in all black clothes with a
ski mask over his face. [testimony of Mike Torres]
[9]. Mr. Torres observed the man pull out a walkie-
talkie, walk to the corner, and jump into a van.
[testimony of Mr. Torres]
[10]. The bullets recovered from Alexandra Heath’s body
were a 9mm Luger caliber, as were two of the bullets
recovered from Martha Lindsey’s body. [testimony of
Lieutenant Swan]
[11]. [Chappell] attempted to create an alibi for himself
by falsely suggesting to several witnesses he was in
their company in Tennessee on the night of this offense
and early the following morning. [testimony of Claude
Cranford, April Ann Glisson, and Penny Gail Oseman]
18
[12]. [Chappell] attempted to have his cellmate bonded
out of jail in order to stage Ms. Hayes’ [sic] suicide
after leaving a note exonerating him and implicating his
friend Ray Pruitt. [testimony of Christopher Patrick
Carroll]
Chappell has not specifically contested any of these findings, much
less presented clear and convincing evidence to refute any of them.
The presumption of correctness therefore applies to them. These
findings, viewed in the light most favorable to the verdict, amply
support each essential element of capital murder. In claiming that
the evidence was constitutionally insufficient to convict, Chappell
does not —— and cannot —— make a substantial showing of the denial
of a constitutional right.
C. S
.ufficiency of the Evidence of Future Dangerousness
Chappell also contends that the evidence is insufficient to
support the jury’s affirmative finding that there was a probability
that Chappell would in the future commit criminal acts of violence
that would constitute a continuing threat to society. Texas law
requires that a jury make this finding before the court may impose
the death sentence.45
1. No Substantial Showing
The district court rejected this claim because Chappell
offered “nothing but conclusory [sic] allegations in support of
this allegation.” Chappell has offered nothing more in his
application to us. Instead of explaining why the evidence does not
45
TEX. CRIM. PROC. CODE ANN. 37.0711(b)(2) (Vernon 1981 & Supp.
2002).
19
support an affirmative answer to the special issue, Chappell merely
states that “it is clear that the evidence at trial was
constitutionally insufficient to support an affirmative answer to
the ‘future dangerousness’ issue,” and that “[n]o rational juror
could have answered this special issue beyond a reasonable
doubt[.]” As we have already explained, such conclusional
allegations do not justify the issuance of a COA.
2. The Evidence Was Sufficient
Again, however, because this is a capital case, we have
exercised caution and reviewed all the pertinent record evidence.
Our review convinces us that Chappell can make no showing, much
less a substantial one, that he has been denied any constitutional
right with respect to the sufficiency of evidence supporting the
jury’s affirmative finding of future dangerousness. If we were to
review whether the evidence is sufficient to support the jury’s
finding of future dangerousness, we would again apply the standard
stated above —— whether any rational trier of fact could answer the
special issue affirmatively.46
The state court conducted a thoughtful and thorough analysis
of the record evidence. The court concluded from this analysis
that “[t]he evidence shows that [Chappell], in an attempt to avoid
responsibility for molesting a child, engaged in an escalating
46
Miller v. Johnson, 200 F.3d 274, 286–88 (5th Cir. 2000)
(applying the Jackson standard to a jury’s “continuing threat”
finding).
20
course of violence from threat to arson to the calculated murder of
three people and then, in order to avoid responsibility for three
murders, arranged for the murder of his wife-accomplice and the
implication of a friend in these murders.” The conclusion that
this evidence, which Chappell’s application does not contest,
sufficiently supported the jury’s finding of future dangerousness
is not debatable among jurists of reason.
As Chappell has made no substantial showing of the denial of
a constitutional right, we deny his request that we issue a COA on
this claim.
D. Exclusion of Hearsay “Admissions”
Chappell next complains of the trial court’s refusal to permit
him to present hearsay statements of Ricky Lee Green, another death
row inmate, to show that Green, and not Chappell, murdered Heath
and her parents. More specifically, Chappell argues that “[b]y
excluding all testimony regarding [Green’s] multiple admissions
that he was the one who committed these murders, the trial court
deprived [Chappell] of the right to present a defense and rendered
his trial fundamentally unfair.” We agree with the district
court’s determination that Chappell has failed to make a
substantial showing that the exclusion of these hearsay statements
amounted to the denial of a constitutional right.
We begin our analysis of this issue by briefly reciting the
procedural history of Chappell’s attempts to secure Green’s live
testimony at trial. The trial court held hearings in October 1993,
21
November 1993, and December 1995 on motions regarding allegations
that Green had confessed to the murders. Green was not present at
the first hearing. During the November 1993 hearing, which Green
did attend, the trial court inquired into his competency and then
admonished him about his rights and gave all statutory warnings.
When the court then asked specifically whether Green wished to
waive the attorney-client privilege and have communications
allegedly made to his attorney, Danny Burns, disclosed, Green
unequivocally answered “No.” The court also asked: “Do you
understand that by saying no now, you are basically saying all of
those letters and things you have written, you didn’t intend? Is
that it?[,]” to which Green answered “Yes.” Green also withdrew
the waiver-of-privilege request wherein he told Burns to disclose
any letter to Chappell’s attorneys. The court then denied
Chappell’s attorney’s request for the court to compel Burns to
produce the previous letter, and refused the request to view any
such letter in camera.
During the December hearing, before Chappell’s retrial, Green
invoked his Fifth Amendment right not to testify. When he first
did so, Green was determined by the trial court to be competent and
able to understand his right not to testify. Green then repeatedly
asserted his right not to testify at Chappell’s trial. Chappell,
not surprisingly, still wished to offer the evidence through
various out-of-court declarations allegedly made by Green.
Chappell’s counsel argued that even though these statements were
22
hearsay, they were nevertheless admissible as statements against
penal interest. After conducting a hearing, the trial court
refused to admit the statements, concluding that they did not
satisfy the reliability requirement of the relevant state rule,
which mandates that a statement against penal interest not be
admitted “unless corroborating circumstances clearly indicate the
trustworthiness of the statement.”47 Chappell has not directed our
attention to any such corroborating circumstances.
The law is well settled that “[a] state court’s evidentiary
rulings present cognizable habeas claims only if they run afoul of
a specific constitutional right or render the petitioner’s trial
fundamentally unfair.”48 Here, Chappell in effect complains that
the trial court refused to allow unreliable hearsay evidence to be
presented to the jury. But he has failed to show that, in so
doing, the Texas court unreasonably applied federal law.
The Compulsory Process Clause of the Sixth Amendment gives a
defendant the right to obtain favorable testimony from witnesses,
and this right applies to the states through the Due Process clause
of the Fourteenth Amendment.49 “The right to offer the testimony
of witnesses . . . is in plain terms the right to present a
defense, the right to present the defendant’s version of the facts
47
TEX. R. EVID. 804(24).
48
Johnson v. Puckett, 176 F.3d 809, 820 (5th Cir. 1999).
49
Washington v. Texas, 388 U.S. 14, 19 (1967).
23
as well as the prosecution’s to the jury so that it may decide
where the truth lies.”50
Of the Supreme Court cases interpreting this right, the one
that most closely parallels Chappell’s claim, Chambers v.
Mississippi,51 stands at best52 for the proposition that when a state
court refuses to admit into a murder trial the confession of a
third party to the crime for which the defendant is being
prosecuted, such a refusal may violate due process if the
confession bears “persuasive assurances of trustworthiness”53 or
“considerable assurance of [its] reliability.”54
Green’s “confession” bears no such assurances. In considering
the propriety of its exclusion, under both federal and state law,
the Texas Court of Criminal Appeals summarized the trial court’s
factual findings as follows:
First, the trial court found that Green’s confession
did not coincide with the facts of the instant case.
Testimony at the hearing showed that Green told defense
investigator Tommy Brown that he killed “Inga” after they
50
Id.
51
Chambers v. Mississippi, 410 U.S. 284 (1973).
52
We last discussed Chambers in detail in Little v. Johnson,
162 F.3d 855 (1998), where we stated that Chambers stands for a
more limited proposition: that “certain egregious evidentiary
errors may be redressed by the due process clause.” Id. at 860
(quoting Barefoot, 697 F.2d at 593, and citing Maness v.
Wainwright, 512 F.2d 88, 91 (5th Cir. 1975) as “recognizing
factual limits” on the Chambers holding).
53
Id. at 302.
54
Id. at 300.
24
had been out drinking and then killed her parents.
However, Heath was no longer going by the name “Inga,”
having changed her name to “Alexandra.” Further, the
autopsy results showed no alcohol present in Heath’s
system at the time of her death.
Second, the trial court found that Green’s four
known murders involved knives and a different type of
motive and victim. Former Fort Worth Police Officer
Danny LaRue investigated the capital murder for which
Green was on death row. LaRue testified that in all of
Green’s confirmed murders, the weapon of choice was
always a knife, the victims were always loners, and the
murders had sexual overtones . . .
Third, the trial court held that Green’s statements
were not trustworthy, based on the following: (1) the
amount of time and opportunity that [Chappell] and Green
had together on death row to discuss the case; (2) Green
had previously expressed a desire to take the blame for
former death-row inmate John Yarborough’s case; and (3)
[Chappell] confessed to Yarborough about the instant
crime.
. . .
The trial court found that death-row inmate David
Wayne Stoker . . . had told defense counsel that Green
killed the Sitton/Lindsey family over a drug
deal——contrary to Green’s confession. . . .
Lastly, defense investigator Edgar Loven testified
that Green had confessed to Roger Thieleman while the two
were being bused back to Tarrant County in February,
1992. The trial court found that the information was
unreliable because Tarrant County booking records show
that Green was not incarcerated in Tarrant County during
that time period.55
These findings amply support the trial court’s exclusion of Green’s
“confession.”
In this court, rather than challenge these findings, which are
therefore presumed to be correct, Chappell takes issue with the
Court of Criminal Appeals’s reliance on United States v. Scheffer,56
55
Chappell v. State, No. 72,666, slip op. at 10–12.
56
523 U.S. 303 (1998).
25
in which the United States Supreme Court upheld a per se exclusion
of polygraph test results from military courts martial.57 In
Scheffer, though, the Court made clear that “[a] defendant’s right
to present relevant evidence is not unlimited, but rather is
subject to reasonable restrictions.”58 Chappell’s attempt to
distinguish Scheffer on the ground that it is inapplicable to
factual evidence tending to negate guilt rings hollow in light of
the Supreme Court’s emphatic repetition that “[t]he accused does
not have an unfettered right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under standard
rules of evidence. The Compulsory Process Clause provides him with
an effective weapon, but it is a weapon that cannot be used
irresponsibly.”59 In any event, this weapon certainly cannot be
used to force the admission at trial of unreliable and
unsubstantiated hearsay testimony.
The trial court gave Chappell a full and fair opportunity to
substantiate the hearsay testimony that he wished to present to the
jury. That Chappell failed to do so with either convincing
evidence or corroborating testimony bolsters our conclusion that
the district court did not act unreasonably in rejecting this
57
Id. at 306–07, 317.
58
Id. at 308.
59
See Taylor v. Illinois, 484 U.S. 400, 410 (1988) (holding
that a trial court may constitutionally exclude the testimony of
a material witness as a discovery sanction).
26
claim. Here, the state trial court did not err in excluding
Green’s hearsay statements, so neither the state courts nor the
district court erred in denying habeas relief. As Chappell has
failed to make a substantial showing that the exclusion of Green’s
uncorroborated hearsay statements violated his constitutional right
to present a defense or rendered his trial fundamentally unfair, we
decline to issue a COA on this claim as well.
E. Denial of Challenge of Venireman for Cause
Chappell also contends that he was denied his right to a fair
jury-selection process when the trial court denied his challenge
for cause to the seating of a prospective juror, venireman Edward
Brett Lea. Specifically, Chappell insists that Lea “was
disqualified to sit on a capital murder jury and apply the law
regarding mitigating circumstances” because Lea could not
distinguish between whether Chappell’s future dangerousness was a
“possibility” or a “probability.”60 The district court concluded
that these contentions are without merit; and since this conclusion
is indisputable among jurists of reason, Chappell can make no
substantial showing that would warrant the issuance of a COA.
Under the Sixth Amendment, a prospective juror may be excluded
for cause if his views regarding the death penalty would “prevent
60
The second special issue asked the jury “whether there is
a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.”
TEX. CODE CRIM. PROC. ANN. 37.0711(b)(2) (emphasis added) (Vernon
1981 & 2002 Supp.).
27
or substantially impair the performance of his duties as a juror in
accordance with his or her oath.”61 For example, a challenge for
cause must be granted if a prospective juror states that he would
automatically impose a death sentence without considering
individual aggravating and mitigating circumstances.62 A potential
juror may, however, be rehabilitated by counsel or the court; and
if it becomes apparent that the juror could follow the law in
accordance with his oath and the court’s instructions, denial of a
challenge for cause would be proper, and the challenged venireman
could serve on the jury. Moreover, a state trial court’s “implicit
finding of impartiality in its denial of the petitioner’s challenge
for cause” is a determination of fact, subject to a presumption of
correctness on collateral review.63
To receive a COA on this claim, Chappell must make a
substantial showing that jurists of reason would find the district
court’s disposition of this claim debatable or wrong. The most
concise analysis of his claim is that of the Court of Criminal
Appeals, which conducted a painstaking review of the relevant
testimony, and concluded that
[t]he record shows that although at one point Lea
characterized the terms [“possibility” and “probability”]
as “synonymous” and “interchangeable,” he later clarified
61
Adams v. Texas, 448 U.S. 38, 45 (1980).
62
See Morgan v. Illinois, 504 U.S. 719, 729 (1992).
63
Montoya v. Scott, 65 F.3d 405, 419 n.29 (5th Cir. 1995);
see also Fuller v. Johnson, 114 F.3d 491, 500–01 (5th Cir. 1997).
28
and retracted his characterization by stating that the
terms were “not exactly interchangeable,” noting that
“probabilities” may be determined while “possibilities”
are infinite. When a prospective juror’s answers are
vacillating, unclear, or contradictory, the trial judge’s
superior point of view is particularly important and
deserving of our deference; and we will hold that the
trial judge abused his discretion only if his decision is
not supported by the record. . . . Having viewed Lea’s
voir dire as a whole, we hold that the trial judge did
not abuse his discretion by denying the challenge for
cause.64
Although he contends that the Court of Criminal Appeals effectively
cherry-picked some of Lea’s responses to justify the denial of the
claim, Chappell points to none of Lea’s responses that the court’s
alleged selectivity omitted. Instead, Chappell stacks inaccuracy
on inaccuracy: He states that Lea never retreated from his initial
statement that the terms “possibility” and “probability” are
synonymous, and therefore, argues Chappell, “[s]ince admittedly all
things are possible, a death sentence was assured.”
Chappell has failed to show that the district court’s
determination was incorrect. The record shows that the trial court
probed extensively into Lea’s understanding of the words
“probability” and “possibility.” At no point did any of Lea’s
answers mandate the conclusion urged by Chappell —— that Lea was
predisposed to vote “yes” on this special issue, no matter what the
evidence showed. Rather, Lea clearly said that whether the death
penalty would be appropriate would depend on the evidence.
64
See Chappell v. State, No. 72,666, slip op. at 16–17
(citations omitted).
29
Accordingly, we deny Chappell’s request for a COA on this
claim.
F. Jury Instruction Regarding Parole
Chappell insists that he was denied a fair trial by the trial
court’s refusal to instruct the jury that if Chappell were
sentenced to life imprisonment, he would not be eligible for parole
within the remainder of the violent period of his life.65 In Texas,
however, parole eligibility is not a proper consideration for
jurors during sentencing in capital cases.66 The Texas Court of
Criminal Appeals has held that the refusal to provide such an
instruction does not violate the Texas Constitution.67
Chappell contends that under Simmons v. South Carolina,68 due
process requires that a parole instruction be given in his case.
In Simmons, the United States Supreme Court held that due process
65
Chappell committed his capital offense in May 1988. At
that time, Texas law provided that a defendant convicted of
capital murder who receives a life sentence is not eligible for
parole until his actual time served equals fifteen years of
confinement, without consideration of good-time credits. See
former TEX. CODE CRIM. PROC. ANN. 42.12 § 3f(a)(1)(A) (Vernon 1979)
and current § 3g(a)(1)(A) (Supp. 2002). In this case, Chappell
would have been 68 years old before becoming entitled to be
considered for parole. He does not refer us to any evidence
regarding the degree of recidivism among 68-year-olds who have
been released after serving lengthy sentences for murder.
66
See Santellan v. State, 939 S.W.2d 155, 170 (Tex. Crim.
App. 1997).
67
See Smith v. State, 898 S.W.2d 838, 846–47 (Tex. Crim.
App. 1995), cert. denied, 516 U.S. 843 (1995).
68
512 U.S. 154 (1994).
30
requires the sentencing jury to be informed that the defendant is
ineligible for parole when the defendant’s future dangerousness is
at issue and state law absolutely prohibits the defendant’s release
on parole.69 In such a case, the defendant may obtain an
instruction regarding that prohibition, to enable the jury to
consider the impossibility of parole while it debates future
dangerousness.
As the district court correctly observed, however, the Simmons
plurality expressly distinguished Texas’s sentencing scheme as not
including a “life-without-parole sentencing alternative to capital
punishment.”70 The plurality also stated that it would not “lightly
second-guess a decision whether or not to inform a jury of
information regarding parole” when parole is available.71 We have
repeatedly determined that Simmons does not apply to Texas capital
cases: A Texas court’s refusal to instruct the jury regarding
parole passes federal constitutional muster.72 Furthermore, our
69
Id. at 168–69 (Brennan, J.) (plurality).
70
Id. at 168 n.8.
71
Id. at 168 n.8.
72
See Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir.)
(collecting cases), cert. denied, 121 S.Ct. 2226 (2001):
We have repeatedly recognized that the Simmons rule
applies only when there is a life-without-possibility-of-
parole alternative to the death penalty, an alternative
that does not exist in Texas. To hold that a lengthy
parole ineligibility is the de facto equivalent of a life
sentence without possibility of parole, as [petitioner]
argues, would create a new rule under the law of our
Circuit.
31
jurisprudence in this area has recently received the support of
Ramdass v. Angelone.73 In that case, the Supreme Court rejected a
capital petitioner’s contention under Simmons that a hypothetical
future event, his “potential parole ineligibility,” required that
a parole ineligibility instruction be given to the sentencing
jury.74
Reduced to its essence, then, this claim for relief asks that
we announce a new rule of constitutional law regarding parole
instructions and apply it to this case. This we cannot do.75
Because the district court (and for that matter, the state
See also Hughes v. Johnson, 191 F.3d 607, 617 (5th Cir. 1999);
Muniz v. Johnson, 132 F.3d 214, 224 (5th Cir. 1998); Allridge v.
Scott, 41 F.3d 213, 222 (5th Cir. 1994) (“We therefore read
Simmons to mean that due process requires the state to inform a
sentencing jury about a defendant's parole ineligibility when,
and only when, (1) the state argues that a defendant represents a
future danger to society, and (2) the defendant is legally
ineligible for parole.”). For state cases to the same effect,
see Broxton v. State, 909 S.W.2d 912, 918–19 (Tex. Crim. App.
1995) (stating that Simmons is not applicable to Texas’ capital
sentencing scheme); Smith, 898 S.W.2d at 850 n.17 (“The
underlying rationale for the Supreme Court in Simmons . . . is
inapplicable to Texas jurisprudence.”).
73
530 U.S. 156 (2000).
74
Id. at 167–68 (Kennedy, J.) (plurality); id. at 179–81
(O’Connor, J., concurring). The rationale of the Ramdass
dissenters does not apply here. Compare id. at 182 (Stevens, J.,
dissenting).
75
See Wheat, 238 F.3d at 361–62, where we stated that, given
our numerous cases holding that the rule of Simmons does not
apply to defendants who would be legally eligible for parole if
sentenced to life in prison, to accept the argument that Chappell
makes here would be to announce a new rule of constitutional law.
Such an announcement is, of course, barred by Teague v. Lane, 489
U.S. 288, 310 (1989).
32
courts) applied current federal law not just reasonably but
correctly, Chappell cannot make a substantial showing of the denial
of a constitutional right. We therefore deny his application for
a COA on this issue.76
G. Denial of “Effective Right” to File a Pro Se Appellate Brief
Lastly, Chappell contends that he was denied the effective
assistance of counsel and a fair appellate review of his sentence
when the State “effectively prevented him from preparing his
appellant’s brief by refusing to allow him access to the record in
a timely manner and refusing to allow [him] access to the [prison]
law library to research his cases.” More specifically, Chappell
complains that he was denied (1) access to the trial record, (2)
access to the prison law library, and (3) adequate time to write
his brief on appeal. The district court ruled that this claim is
procedurally barred, because it was never presented to the state
courts and thus has not been exhausted. Again, as a cautious
alternative, the district court went on to rule that Chappell’s
76
Chappell directs us to Brown v. Texas, 522 U.S. 940
(1997), an opinion authored by Justice Stevens and joined by
Justices Souter, Ginsburg, and Breyer, on a denial of a petition
for writ of certiorari. That opinion remarked on “the need and
desirability of giving a parole instruction when the period of
parole is so long as to effectively keep a prisoner incarcerated
for the remainder of the violent period of his life.” Id. This
portion of Brown, however, is of no precedential value, as
Justice Stevens’s opinion was a dissent from the denial of
certiorari. Regardless of the merits of Justice Stevens’s
position, his dissent did not render the Texas habeas court’s
ruling on this issue an unreasonable application of federal law
as interpreted by the Supreme Court.
33
claim is belied by the record and thus fails on the merits as well.
Chappell has not made the showing required for a COA to issue with
respect to either of these alternative holdings.
1. Procedure
First, a review of Chappell’s state writ petition plainly
demonstrates that he never raised this claim in the state courts.
Instead, Chappell argued that the Court of Criminal Appeals
violated his right to counsel by “allowing [Chappell] to prepare
and file his own direct appeal to his conviction in contravention
to [sic] the Sixth and Fourteenth Amendments to the United States
Constitution in that [Chappell] clearly lacked the professional
competence necessary to effectively argue his own case.”77 Chappell
raised no allegations that he was prevented from gaining access to
the appellate record or to the prison law library. Neither does he
mention the procedural bar in his COA application to this court,
let alone attempt to explain how the district court incorrectly
applied it. We hold that a COA cannot be granted on this
unexhausted and thus procedurally barred claim.
2. Merits
The district court alternatively ruled that Chappell’s claim
fails on the merits. He cannot make a substantial showing here,
because the district court was entirely correct, as a brief review
of the relevant events shows.
77
Chappell does not repeat this argument to us.
34
After Chappell’s court-appointed attorney filed a brief on
direct appeal, Chappell filed motions to strike the brief, dismiss
his counsel, and proceed pro se. The Court of Criminal Appeals
remanded the case for a hearing on Chappell’s motion for self-
representation.
At the hearing, the trial court admonished Chappell about the
dangers and disadvantages of self-representation. For example, the
trial court warned Chappell that “any other appellate lawyer[ ]
would have greater access to research materials than anyone that is
incarcerated,” and that Chappell faced “many limitations” in
accessing “various documents and materials.” Chappell answered,
“Yes, sir, I realize that. It’s a definite handicap.” Chappell
nevertheless insisted on exercising his state right to self-
representation on direct appeal in conscious disregard of the trial
court’s repeated warnings about proceeding pro se, particularly in
light of the seriousness of the punishment he was facing. The
Court of Criminal Appeals subsequently granted Chappell’s motion
for self-representation, relieved Chappell’s appointed counsel of
any further duties, and ordered that the brief previously filed be
removed from the record.
Our review of the record convinces us that the State did not
prevent Chappell from preparing his appellate brief in a timely
fashion. Chappell may not have received the record as promptly as
he would have liked, but he was granted two extensions of time in
which to prepare his brief. Chappell does not argue that the delay
35
in receiving the record prevented him from raising any claims on
his direct appeal or harmed his defense in any other way; he
ultimately filed a 96-page brief incorporating the points made by
his former counsel and raising a total of seven points of error.
None of Chappell’s appellate filings were in fact rejected as
untimely. On this point, Chappell thus has made no substantial
showing —— and cannot.
Similarly, Chappell has not shown that he was denied adequate
access to the prison law library to prepare his appellate brief.
Chappell himself testified at the hearing that he had adequate
access to the law library through his fellow inmates: “To get
around this rule [a limit on the number of sources a prisoner could
request at one time], you get other people to order three law books
also . . . . I can get as many as I need because I can get five
people, ten people, whatever I need, to order me three law books
each.” Having insisted on proceeding pro se despite the trial
court’s lucid and fully adequate warnings about the potential risks
and hardships of self-representation, Chappell cannot now be heard
to complain of those same risks and hardships, or the untoward
results, if any, that they may have produced, as grounds for habeas
relief.
Chappell summarizes this claim by urging that “the State
cannot constitutionally deprive the petitioner of the tools to
complete a successful brief of all the issues he should have been
given,” and that petitioners have a right to effective assistance
36
on direct appeal. But, inasmuch as broad generalities never
suffice as a substantial showing of the denial of a constitutional
right, and because we find the district court’s determinations with
respect to the record, the library, and the appellate scheduling to
be beyond debate among reasonable jurists, we hold that a COA
should not issue on this ground either.
III.
CONCLUSION
For all the foregoing reasons, Chappell’s application is
DENIED.
37