UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 02-10252
BOBBY LEE HINES,
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, Dallas Division
(3:99CV-0575-G)
December 31, 2002
Before EMILIO M. GARZA, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Bobby Lee Hines was convicted of capital murder and sentenced
to death by the Texas state courts for the murder of Michelle Wendy
Haupt. He now petitions this court for a Certificate of
Appealability (COA) to pursue his habeas corpus claims as required
*
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opinion should not be published and is not precedent except under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
by 28 U.S.C. § 2253(c)(1) for claims denied by the district court.
Specifically, Hines argues that reasonable jurists would find
debatable the district court’s conclusions that (1) the trial court
did not err in denying Hines a continuance to allow his expert to
conduct DNA testing, and (2) that the state habeas court did not
err in failing to appoint a DNA expert to aid Hines in preparing
his state habeas application. Hines also argues that the district
court erred in not giving him funds for an independent DNA test
during his federal habeas proceeding as it is permitted to do under
21 U.S.C. § 848(q).1 For the reasons below we deny petitioner all
relief sought.
I. FACTS AND PROCEDURAL HISTORY
On October 19, 1991, Mary Ann Linch went to the apartment of
her friend Michelle Wendy Haupt in Carrollton, Texas to spend the
weekend. Linch brought with her a Marlboro cigarette carton in
which only four packs remained. She had purchased the cigarettes
at Brookshires’ in Corsicana, Texas, and the carton contained a
stamp showing “Brookshires’ Store” on the side. Linch left the
carton at Haupt’s when they left that evening to go to a nightclub.
Linch had intended to return to Haupt’s, but instead spent the
night with another friend.
Linch testified that when they went to the club, Haupt was
wearing a gold sand-dollar charm necklace which she always wore.
1
Hines does not need a COA to pursue this claim. Fuller v.
Johnson, 114 F.3d 491, 501 n.4 (5th Cir. 1997).
2
During the evening, Haupt became ill. Another friend drove Haupt
back to her apartment and then left. He testified that Haupt
locked the door behind him.
Meanwhile, at Haupt’s apartment complex, Hines appeared
uninvited at a party. When the hostess asked him who he was, he
identified himself as the brother of the apartment manager. He
told another guest that he was part of the maintenance crew at the
complex. He pulled out a ring of keys and stated that he could get
into any apartment he wanted to at any time.
At approximately 6:00 a.m. on October 20, 1991, Haupt’s next-
door neighbor heard a woman screaming. He could not determine the
source of the screams, but his wife called the police. Two police
officers were dispatched to the scene, but the screaming had ended
before they arrived. After inspecting the premises, the officers
could not determine where the screams had come from and they
eventually left. Two other residents in the apartment directly
below Haupt’s also heard screaming loud enough to awaken them. One
of the residents testified that he also heard other loud noises
that sounded “like a bowling ball being dropped on [Haupt’s]
floor.” He heard this noise at least 20 times. The screaming
lasted for approximately 15 minutes. The resident of an adjacent
downstairs apartment also heard the screaming.
Just before noon that morning, the residents discussed what
they had heard and became concerned for Haupt. Eventually, the
apartment leasing manager was persuaded to check Haupt’s apartment.
3
After knocking and receiving no answer, the manager opened the door
and saw Haupt lying on the floor just inside the door. The cord
was around her neck, her face was black, and she appeared to be
dead. The manager had someone call an ambulance.
Haupt was found dressed in only a robe and lying face up on
the floor. There were puncture wounds to her chest area and the
cord from the stereo was wrapped around her neck. The robe was
stained with blood, but it had no holes to correspond with the
puncture wounds to Haupt’s body, indicating the robe was placed on
her body after the wounds were inflicted. Further, the belt to the
robe was tied tighter than a person would normally tie it against
her own body. An object appearing to be an ice pick was found on
the nearby couch. Hines’ fingerprint and bloody palm print were
found within the apartment.
Dr. Jeffrey Bernard, the Dallas County Chief Medical Examiner,
testified that the cause of Haupt’s death was strangulation and
puncture wounds. She had stereo speaker wire drawn tightly around
her neck, abrasions to her neck and jaw, contusions on her neck and
a fractured hyoid bone. She had approximately 18 puncture wounds
to her chest, right flank area, her back, the interior wall of her
vagina, her left upper extremity, and her right thigh. She further
had rectal tears with hemorrhaging. Barnard testified that the
puncture wounds could have been made by the object found on the
couch.
Later the same day, Hines was found to be in possession of
4
Haupt’s gold sanddollar charm. He had blood on some of his
clothing, as well as scratches under his eye, and on his neck and
cheek. Other objects from Haupt’s apartment, including the
Brookshires’ cigarette carton, were found under the couch where
Hines had been sleeping.
Hines was convicted of capital murder on March 19, 1992, and
sentenced to death. His direct appeal was denied by the Texas
Court of Criminal Appeals in May 1995 in an unpublished opinion.
Hines v. State, No. 71,442 (Tex. Crim App. May 10, 1995)
(unpublished). His state habeas application was also denied by the
Texas Court of Criminal Appeals in another unpublished opinion. Ex
Parte Hines, No. 40,347-01 (Tex. Crim. App. 1999) (unpublished).
The federal district court for the Northern District of Texas then
denied Hines’ federal habeas relief, as well as his request for a
COA to our court.
II. STANDARD OF REVIEW
A habeas petitioner cannot appeal the denial of habeas relief
from the district court unless he obtains a COA. 28 U.S.C. §
2253(c)(1). Since Hines filed his habeas application after April
24, 1996, the rules for COA review are governed by the
Antiterrorism and Effective Death Penalty Act (AEDPA). Lindh v.
Murphy, 521 U.S. 320, 336 (1997). “Under AEDPA, a COA may not
issue unless ‘the applicant has made a substantial showing of the
denial of a constitutional right.’” Slack v. McDaniel, 529 U.S.
5
473, 483 (2000) (citing 28 U.S.C. § 2253(c)(2)). “Where a district
court has rejected the constitutional claims on the merits, the
showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable
or wrong,” or, at least, that the “issues presented were adequate
to deserve encouragement to proceed further.” Id. at 484; Moore v.
Johnson, 225 F.3d 495, 500 (5th Cir. 2000). Although the nature of
the penalty in a capital case is an appropriate consideration in
evaluating a COA application, “the severity of the penalty does
not, in and of itself, require the issuance of a COA. However, in
capital cases, doubts as to whether a COA should issue must be
resolved in favor of the petitioner.” Clark v. Johnson, 202 F.3d
760, 764 (5th Cir. 2000) (citations omitted); Lamb v. Johnson, 179
F.3d 352, 356 (5th Cir. 1999).
To obtain habeas relief, a petitioner must either demonstrate
that the state court’s decision “was contrary to . . . clearly
established Federal law, as determined by the Supreme Court of the
United States,” or “involved an unreasonable application of . . .
clearly established Federal law, as determined by the Supreme Court
of the United States.” Williams v. Taylor, 529 U.S. 362, 412-13
(2000). A state court’s decision is “contrary to” clearly
established federal law if it “arrives at a conclusion opposite to
that reached by th[e] [Supreme] Court on a question of law or if
6
the state court decides a case differently than this Court has on
a set of materially indistinguishable facts.” Id. A state court’s
decision is an “unreasonable application” of federal law “if the
state court identifies the correct governing legal principle from
th[e] [Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. A state
court’s determination of factual issues are presumed correct and
the applicant bears the burden of rebutting the presumption with
clear and convincing evidence.
III. TRIAL CONTINUANCE
Hines first seeks a COA for his claim that the trial court
violated his constitutional right to due process and effective
assistance of counsel by denying him a trial continuance following
jury selection to allow his DNA expert, Dr. Arthur J. Eisenberg, to
conduct independent testing of blood samples found on Hines’ pants
and underwear. The government subjected those samples to a
serology test that found the blood contained A antigens, and
therefore could not have come from the victim. The subsequent
government DNA test matched the blood sample with the victim’s,
however, and Hines sought a ten-week continuance to conduct an
independent DNA test to resolve this discrepancy. The trial court
denied this continuance, and Hines now argues this denial was
unconstitutional.
When a denial of a continuance is the basis of a claim for
7
habeas relief, for relief to be granted not only must the trial
judge have abused his discretion, but the denial must have been “so
arbitrary and fundamentally unfair that it violates constitutional
principles of due process.” Hicks v. Wainwright, 633 F.2d 1146,
1148 (5th Cir. 1981). Here, petitioner claims that the denial
violated his due process right to present an effective defense as
guaranteed in Ake v. Oklahoma, 470 U.S. 68, 76-77 (1985). In Ake
the Supreme Court held a criminal defendant’s due process rights
include the right to expert assistance where such help is necessary
to give indigent defendants “an adequate opportunity to present
their claims fairly within the adversary system.” Id. at 77,
quoting Ross v. Moffit, 417 U.S. 600, 612 (1974). Hines argues
that by denying the continuance, the trial court robbed him of his
ability to effectively use Dr. Eisenberg, thereby depriving him of
the opportunity to mount an adequate defense.
The Texas state courts and the district court offer compelling
reasons why this claim fails. First, the state habeas court
concluded that Hines did in fact receive expert assistance as
required by Ake. Dr. Eisenberg testified at trial about the
shortcomings in the prosecution’s DNA evidence, including the
inconsistency with the serology test results, as well as the fact
that the DNA test could not exclude that the blood on Hines’
clothes was that of his roommate Jimmy Knight. Dr. Eisenberg also
assisted the defense in preparation of its cross-examination
8
questions, including questions to the State’s serologist Michele
Skidmore that attempted to discredit her theory that the A antigens
came from Hines’ sweat. Thus, even without additional testing, the
state habeas court concluded the defense was able to use Dr.
Eisenberg to raise reasonable doubt in juror’s minds about the
state’s blood evidence.
Hines fails on appeal to introduce evidence that suggests this
conclusion of the state habeas court was an unreasonable
application of or contrary to established Supreme Court precedent.
Hines argues that had Dr. Eisenberg conducted additional testing,
it would have provided evidence consistent with the theory that
Hines is innocent, and inconsistent with the government’s test
results. While such speculative benefits are possible, Hines
forgets the admonishment of the Court in Ake that the state need
not buy the indigent defendant all the assistance a wealthy man
might get. Ake, 470 U.S. at 77. Rather, the test is whether the
defendant was given an adequate opportunity to present his claims
at trial. Here, Dr. Eisenberg’s testimony regarding the
shortcomings in the state’s DNA evidence, as well as his assistance
in drafting cross-examination questions of the state’s DNA and
serology witnesses, gave Hines such an opportunity. Thus, Hines
fails to develop the factual or legal basis of a valid Ake claim.
Assuming arguendo that Eisenberg’s assistance to defense
counsel was somehow inadequate, Hines has not demonstrated that he
had the constitutional right to further DNA testing. As we
9
explained in 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.” Id. (citations omitted). In denying Hines’ claim on
direct appeal, the Texas Court of Criminal Appeals concluded that
petitioner failed to establish that additional DNA testing met the
second prong of this test. It explained that Hines did not
introduce evidence suggesting that further testing would produce a
contrary result. In reaching this conclusion the state court noted
that Dr. Eisenberg had testified that he believed that the
government’s tests were conducted using proper procedures,
suggesting further DNA testing would not produce different results.
In finding this conclusion was not an unreasonable application of
or contrary to established Supreme Court precedent, the district
court added its own doubt that prong 1 of the test had been met,
concluding that evidence as to the source of the blood on Hines’
clothes was not “critical” to his conviction. The district court
came to this conclusion after considering the volume of other
evidence against Hines, including his bloody palm print on Haupt’s
wall.
Hines argues that reasonable jurists would debate both of
these conclusions. As to the former, Hines claims that the
inconsistencies between the government DNA results and the serology
report were sufficient to suggest that the results of a second DNA
test might be different than the first. As to whether the evidence
10
was “critical” to conviction, Hines argues that contrary DNA
evidence would have given him three benefits critical to his
defense. First, the testing might have established the
government’s DNA evidence was too unreliable to be admitted.2
Second, the test could have impeached Dr. Robert Giles, the
government DNA expert. Finally, the results could have created
rebuttal evidence consistent with the theory that Hines is
innocent.
Hines’ arguments do not lead us to believe that reasonable
jurists would debate the district court’s conclusions. To be
entitled to non-psychiatric expert assistance a defendant must show
something more than a mere possibility that the desired assistance
will be helpful. Yohey, 985 F.2d at 227. In this case Hines has
not shown that there is more than the mere possibility that
additional DNA testing would produce different results. Given the
testimony of Skidmore that the contrary serology results were
caused by Hines’ sweat, those results are insufficient to suggest
that further DNA tests would produce a different result. Further,
as the state court on direct appeal noted, defendant’s expert
admitted that the state procedures for the DNA test were adequate.
2
Under Texas Rule of Criminal Evidence 702, expert testimony is
only admissible if it is reliable and on balance is of assistance
to the trier of fact. Kelly v. State, 824 S.W.2d 568, 572 (Tex.
Crim. App. 1992). Such evidence is reliable if (a) the underlying
scientific theory is valid; (b) the technique applying the theory
is valid; and (c) the technique was properly applied in the case in
question. Id. at 573.
11
This suggests that a second test likely would have produced the
same results.
Hines has also not shown that the evidence from the second DNA
test would have been critical evidence at trial. As the district
court correctly noted, the State has other scientific evidence
tying Hines to Haupt’s apartment, including his bloody palm print
on her wall. Additionally, the State had circumstantial evidence
linking Hines to Haupt, as he had her belongings in his possession.
Thus, the DNA link of Haupt to Hines’ clothes does not seem
critical to the conviction. Moreover, even if the additional test
produced contrary results, it would not have resulted in exclusion
of the government’s DNA test, as by defendant’s own admission the
government DNA test used proper techniques.3 At most it would have
produced additional impeachment evidence.4 Given that Dr.
Eisenberg already presented such evidence, we cannot conclude that
3
As noted above, the test for reliability for admission of expert
testimony is whether (a) the underlying scientific theory is valid;
(b) the technique applying the theory is valid; and (c) the
technique was properly applied in the case in question. Kelly, 824
S.W.2d at 573. As DNA evidence meets the first two prongs of this
test in Texas, id. at 574, and defendant’s expert admits it was
properly applied here, the evidence would have been admissible
regardless of contrary test results produced by Eisenberg.
4
Hines argues that a DNA test showing the blood on his clothes
was not Haupt’s would be independent evidence of his innocence. He
argues that the blood was instead that of his roommate Jimmy
Knight. But Hines has failed to explain how the fact that the
blood belonged to Jimmy Knight, or anyone else other than Haupt for
that matter, would exonerate him, as such evidence is in no way
probative of innocence. At most, it would discredit one piece of
the government’s case, which when considered in the context of the
volume of other evidence against Hines, is not critical.
12
additional impeachment evidence meets the “critical” threshold.
Accordingly, Hines’ request for a COA on this claim is denied.
IV. STATE HABEAS ERRORS
Hines next seeks a COA for his claim that the state habeas
court erred by not hiring him a DNA expert to assist in preparation
of his claim, thereby depriving him of due process and effective
assistance of counsel. The district court denied Hines relief on
this claim on alternative grounds. First, it addressed the merits
of the claim, and concluded it was not unreasonable for the state
court to deny Hines access to an expert to develop his claims. In
the alternative, the district court held that the claim of error in
the state habeas proceeding was not cognizable on federal habeas,
as the claim was an attack on a proceeding collateral to the
detention rather than the detention itself.
Errors and deficiencies in state habeas proceedings cannot
form the basis of relief in a federal habeas application. Trevino
v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999). Hines argues
reasonable jurists would debate the district court’s application of
this straightforward rule because the Texas state constitution
guarantees petitioners the right to “competent counsel” in state
habeas proceedings. This state created right to habeas counsel
creates a federal constitutional right to effective counsel, Hines
reasons.
Hines’ argument is unavailing, as we rejected this exact
13
argument in In re Goff, 250 F.3d 273 (5th Cir. 2001). There we
explained that under Pennsylvania v. Finley, 481 U.S. 551 (1987),
states that choose to provide petitioners counsel in state post-
conviction proceedings are not obligated to ensure that counsel
meets constitutional minimums for defense attorneys at trial or on
direct appeal. In re Goff, 250 F.3d at 275. The reason, we
explained, was that, “the Constitution does not put the State to
the difficult choice between affording no counsel whatsoever,” or
following strict constitutional guidelines for the counsel it
provides. Id., quoting Finley, 481 U.S. at 559. Thus, as Texas
was under no obligation to provide Hines with counsel for his state
habeas proceeding, the ineffective assistance of that counsel, or
counsel’s failure to meet minimum due process standards, cannot
form the basis of federal habeas relief. Hines’ request for a COA
on this claim is denied.
V. DISTRICT COURT FUNDING OF DNA TESTS
In his final point of error Hines argues the district court
wrongly denied him funds to conduct a new DNA test on the blood
evidence to aid his federal habeas application as allowed under 21
U.S.C. § 848(q)(9). That section states:
Upon a finding that investigative, expert, or other
services are reasonably necessary for the representation
of the defendant, whether in connection with issues
relating to guilt or the sentence, the court may
authorize the defendant's attorneys to obtain such
services on behalf of the defendant and, if so
authorized, shall order the payment of fees and expenses
...
14
21 U.S.C. § 848(q)(9) (emphasis added). In denying Hines funds
under this section, the district court concluded that Hines had not
shown that the requested assistance would aid him in the
development of a viable habeas claim. It rejected his argument
that testing would aid in developing the trial continuance claim
above, concluding that claim lacked merit.
We review the district court’s determination to deny expert
funds under 21 U.S.C. § 848(q)(9) for an abuse of discretion. See
Clark, 202 F.3d at 765-66 (noting that district court’s
determination whether to take additional evidence is reviewed for
abuse of discretion). Hines argues that the district court abused
its discretion in denying the funds because a DNA test was
reasonably necessary for him to prove that the DNA test results
were “subject to varying expert opinion,” as required by Yohey, 985
F.2d at 227.
Assuming arguendo that Hines is correct that the tests were
reasonably necessary to establish that a second DNA test at trial
would have produced different results, we still cannot conclude
that the district court abused its discretion. We explained in
Fuller, 114 F.3d at 502 (5th Cir. 1997), that for a request for
funds to be “reasonably necessary” for a claim, a petitioner must
demonstrate how those results can show that any aspect of his trial
was constitutionally flawed. Hines argues that the requested test
could show that he was constitutionally entitled to a trial
15
continuance under Yohey. But to make a valid Yohey claim, not only
does Hines have to show that additional DNA testing might have
produced different results, but also that the results would have
been critical evidence at trial. As we noted above, Hines cannot
do so. Accordingly, we affirm the district court’s denial of
Hines’ funding request.
VI. CONCLUSION
Because Hines has failed to show that reasonable jurists would
debate the conclusions of the district court, his requests for a
COA are DENIED. In addition, because Hines has not shown that the
trial court abused its discretion in denying him funds for expert
testing, the district court’s denial of Hines’ funding request is
AFFIRMED.
DENIED; AFFIRMED.
16