Chase v. Epps

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 7, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 01-60516
Summary Calendar

RICKY R. CHASE,

Petitioner-Appellant,

versus

CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI
DEPARTMENT OF CORRECTIONS; MIKE MOORE, Attorney
General of the State of Mississippi,

Respondents-Appellees.

--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
(3:97-CV-744)
--------------------

Before JOLLY, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Ricky R. Chase, a Mississippi death row

inmate, petitions us for an expansion of the Certificate of

Appealability (“COA”) granted by the district court and appeals the

district court’s denial of habeas corpus relief. We decline to

expand the COA, and we affirm the district court’s denial of habeas

relief.

*
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this opinion should not be published and is not precedent except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.
 I. FACTS AND PROCEEDINGS

Chase and Robert Washington entered the home of Elmer and

Doris Hart while Elmer was away, bound Doris, and ransacked the

home. When Elmer Hart came home and attempted to free his wife,

Chase fatally shot him in the head. Chase was convicted of capital

murder and sentenced to death for that murder. Chase’s conviction

and sentence were affirmed by the Mississippi Supreme Court on

direct appeal, see Chase v. State, 645 So. 2d 829 (Miss. 1994), and

the United States Supreme Court denied certiorari. See Chase v.

Mississippi, 515 U.S. 1123 (1995). Thereafter, the Mississippi

Supreme Court denied Chase's application for state habeas corpus

relief. See Chase v. State, 699 So. 2d 521 (Miss. 1997).

Chase next filed a 28 U.S.C. § 2254 petition in the United

States District Court for the Southern District of Mississippi,

asserting 32 claims of error in connection with his trial and

sentencing. That court denied the petition but granted a COA on

one issue, viz., whether Chase's trial counsel rendered ineffective

assistance by failing to have Chase properly evaluated for mental

retardation.

II. ANALYSIS

A. Chase's mental status

Although the district court granted Chase a COA on the issue

whether defense counsel had Chase properly evaluated for mental

retardation, Chase actually argued in both state and federal court

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that trial counsel was ineffective for failing to present evidence

of his mental retardation at his suppression hearing, at trial, and

at sentencing. As this is the argument that Chase briefed and that

the district court addressed, we construe the grant of COA as

encompassing the issue of counsel's handling of the retardation

evidence.

A federal application for a writ of habeas corpus will not be

granted 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); Williams v.

Taylor, 529 U.S. 362, 411-12 (2000). A state court acts "contrary

to" federal law if it "appl[ies] a rule that contradicts a rule

laid down by the Supreme Court." DiLosa v. Cain, 279 F.3d 259, 262

(5th Cir. 2002). "[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." Williams, 529 U.S. at 409.

"[A]n unreasonable application of federal law is different

from an incorrect or erroneous application of federal law. Id. at

412. "[A] federal habeas court may grant the writ if the state

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court identifies the correct governing legal principle from [the

Supreme Court's] decisions but unreasonably applies that principle

to the facts of the prisoner's case." Id. at 413. In addition,

the federal court must assign a presumption of correctness to a

state court's factual determinations, and the burden is on the

petitioner to rebut the presumption by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1). We apply the same standard of

review to the state court's decision as does the district court.

We review the district court's findings of fact for clear error and

its conclusions of law de novo. Beazley v. Johnson, 242 F.3d 248,

255 (5th Cir.), cert. denied, 534 U.S. 945 (2001). A claim of

ineffective assistance of counsel presents a mixed question of law

and fact that we review de novo. Lockett v. Anderson, 230 F.3d

695, 710 (5th Cir. 2000).

Prior to trial, defense counsel moved to have Chase examined

by a psychiatrist to aid the defense and its presentation of

mitigating circumstances. Chase argues that his pre-trial mental

examination showed that he was mentally retarded, but that, despite

this evidence, trial counsel failed to present it at either the

suppression hearing or during the sentencing phase of the trial.

To prevail on a claim of ineffective assistance of counsel,

Chase must show (1) that his counsel's performance was so deficient

that it fell below an objective standard of reasonableness, and (2)

that counsel’s deficient performance prejudiced Chase’s defense.

Strickland v. Washington, 466 U.S. 668, 689-94 (1984). To show

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Strickland prejudice, a petitioner must demonstrate that counsel's

errors were so serious as to "render[] the result of the trial

unreliable or the proceeding fundamentally unfair." Lockhart v.

Fretwell, 506 U.S. 364, 369 (1993).

The record reflects that here defense counsel did not fail to

investigate Chase's mental status; and we conclude that his

performance does not fail the Strickland test for failure to

investigate this aspect of the case. Counsel actually obtained two

mental evaluations of Chase. He was first examined by Dr. John W.

Perry, Jr., a psychologist, who found that Chase has a Full Scale

IQ of 71, a Verbal IQ of 77, and a Performance IQ of 64. Dr. Perry

concluded that Chase was "mildly retarded" on his Performance IQ

but "borderline" on his Full Scale IQ. As the district court

noted, Dr. Perry's assertion that the Performance IQ was in the

mildly retarded range is undercut by the observation of Dr. Perry

that next followed, i.e., that Chase did not seem to be performing

at his best on that particular part of the test. Dr. Perry found

no indication of a thought disorder and concluded that Chase was

competent to stand trial and had been capable of distinguishing

right from wrong at the time of the offense. Dr. Perry concluded

that Chase is "literate and has intellectual ability at least in

the borderline range." (Emphasis added). Dr. Perry found "no

evidence of a mental disorder in observing him and in reviewing his

history" and did not see a need for further tests.

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 Chase was subsequently examined by Dr. S. Ray Pate, a

psychiatrist. Dr. Pate's report further erodes Chase's claim of

mental retardation, as this physician offered his expert opinion

that Chase did not have a mental illness and did not present a

history compatible with having a mental illness at any time in his

life.

The Mississippi Supreme Court concluded that Dr. Perry's

report did not present powerful evidence in favor of Chase and that

counsel appeared to be following a strategy at sentencing of

showing the good in Chase to justify sparing his life rather than

trying to portray Chase as a victim. This conclusion by the state

court was not contrary to or an unreasonable application of federal

law and was not an unreasonable determination of the facts in light

of the evidence, given the weak nature of the mental retardation

evidence. Counsel's failure to develop and present mitigating

evidence of a defendant's low IQ and borderline retardation does

not fail the Strickland test for effective assistance. See, e.g.,

Jones v. Johnson, 171 F.3d 270, 277 (5th Cir. 1999); Boyd v.

Johnson, 167 F.3d 907, 910-11 (5th Cir. 1999); Williams v. Cain,

125 F.3d 269, 277 (5th Cir. 1997); Andrews v. Collins, 21 F.3d 612,

624 (5th Cir. 1994); Duhamel v. Collins, 955 F.2d 962, 966 (5th

Cir. 1992); compare Jones v. Thigpen, 788 F.2d 1101, 1102-03 (5th

Cir. 1986)(counsel was ineffective by failing to present any

mitigating evidence where habeas proceedings demonstrated that

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prosecution and defense agreed defendant was mentally retarded with

a full scale IQ of less than 41).

Chase also argues that defense counsel was deficient in

failing to present evidence of his mental retardation at the

suppression hearing. We note, as did the Mississippi Supreme

Court, that Chase was not examined, and Dr. Perry did not issue his

report, until after the suppression hearing. See Chase, 699 So. 2d

at 529. Trial counsel could not be ineffective for failing to

present evidence that did not exist at the time of the suppression

hearing; and Chase does not argue that counsel should have obtained

a mental evaluation sooner.

As for Chase’s contention that his post-arrest statement was

not voluntary and that defense counsel should have presented

evidence of his retardation when his statement was referenced at

trial, the state supreme court held that the trial court was privy

to Dr. Perry's report and that counsel was not ineffective for

failing to use Dr. Perry's report differently. Id. Chase has not

shown that the state court's resolution of this issue was contrary

to or an unreasonable application of federal law. 28 U.S.C. §

2254(d).

B. Transport for mental evaluation

On federal habeas, Chase sought permission to obtain a

psychiatric examination at his own expense. The district court

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initially granted Chase permission, directing that the evaluation

be conducted at the Mississippi State Penitentiary in Parchman,

Mississippi. When nine months elapsed without counsel for Chase

having obtained an evaluation, however, the district court reasoned

that there was no basis for counsel's delay and withdrew permission

for this evaluation. Chase argues that the district court erred by

failing to provide transportation to Jackson, Mississippi, so that

the examination could be conducted there, after being advised that

Chase's family had sufficient funds to pay for an examination in

Jackson but not enough to pay the additional cost of transportation

for an expert willing to travel to Parchman.

Chase submitted his original request for the assistance of

experts pursuant to 21 U.S.C. § 848(q), which empowers the district

court to authorize investigative, expert, or other services to

defendants, and allows the court to authorize payment for such

services at government expense. A COA is not required to appeal

the denial of funds for expert assistance, see Hill v. Johnson, 210

F.3d 481, 487 n.3 (5th Cir. 2000). Furthermore, Chase does not

argue that the court improperly denied him funds; rather, his

argument arises from the district court's order in response to his

motion for experts under 21 U.S.C. § 848(q). Therefore, no COA is

necessary. We review orders involving 21 U.S.C. § 848(q) for an

abuse of discretion. See id. at 487.

By rescinding its previous order granting Chase permission to

obtain a psychiatric examination at his own expense, the district

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court implicitly found that such an examination was not necessary.

Chase makes no argument with respect to the court's order,

contending only that when the court granted permission for an

examination, it should have also provided funds for his

transportation to Jackson. As Chase does not expressly contest the

order rescinding permission for a mental evaluation, the issue

whether Chase should have been transported to Jackson earlier is

moot. Further, Chase does not argue that the district court erred

by requiring him to pay for the evaluation, and he cites no

authority in support of his contention that the district court was

required to transport him. This issue is deemed abandoned because

of inadequate briefing. See Martin v. Cain, 246 F.3d 471, 475 n.1

(5th Cir.), cert. denied, 534 U.S. 885 (2001); Yohey v. Collins,

985 F.2d 222, 224-25 (5th Cir. 1993).

Neither was the district court's order rescinding permission

for the psychological evaluation an abuse of discretion. At the

time of the rescission order, defense counsel had had nine months

within which to obtain the evaluation. Yet she informed the court

at a hearing that, just the previous day, she had contacted an

expert who might be willing to travel to Parchman but that she had

not worked out the details. Counsel, who had been pregnant during

the intervening time, did not explain why, in her absence, her co-

counsel could not have obtained an expert and had the examination

performed; and the parties had already briefed the issues on the

merits. A district court has "inherent power to control its docket

9
and prevent undue delays in the disposition of pending cases."

Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 400 (5th Cir.

1985)(citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)). We

perceive no reversible error.

Finally, in connection with the state proceedings, Chase had

been examined by two experts, neither of whom provided solid

evidence of actionable mental retardation. Chase sought additional

testing from the district court so that he could attempt to

supplement, if not contradict, that prior evidence. The district

court's denial of additional psychiatric testing under the

circumstances of this case was not an abuse of discretion. See

Barraza v. Cockrell, __ F.3d __ (5th Cir. May 1, 2003, No. 02-

10979), 2003 WL 2002090 at *2.

C. Additional issues on which COA was denied

Chase asserts numerous issues concerning the alleged

ineffective assistance of counsel and errors allegedly occurring

before and during his trial, as well as at his sentencing. The

district court did not grant a COA on any of these issues, and we

will not review issues uncertified by the district court unless the

petitioner explicitly requests that we expand the COA. See United

States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998). Only if the

petitioner expressly requests that the grant of COA be broadened to

cover issues on which the district court has denied COA may we

consider whether to expand the grant of COA to include such issues.

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Id. at 431. Chase asserts that the district court erred by denying

a COA on the numerous issues raised in his brief. We construe this

statement as a request for expansion of the COA, albeit marginally.

A COA may be issued only if the petitioner has "made a

substantial showing of the denial of a constitutional right." 28

U.S.C. § 2253(c)(2). This standard requires the petitioner to

"demonstrate that reasonable jurists would find the district

court's assessment of the constitutional claims debatable or

wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also

Miller-El v. Cockrell, 123 S. Ct. 1029, 1039 (2003).

1. Inadequately briefed issues

As a preliminary matter, Chase raises various ineffective

assistance issues in a virtually summary or conclusional fashion,

failing to provide either record or case citations or legal

analysis. He asserts that trial counsel was ineffective by (1)

failing to object to six of eight peremptory challenges by the

state; (2) failing to object to the prosecutor's jury argument; and

(3) failing to secure an instruction on a lesser-included offense.

As Chase has failed adequately to brief and seriously argue these

issues, they are deemed abandoned. See Woods v. Cockrell, 307 F.3d

353, 357 (5th Cir. 2002); see also FED. R. APP. P. 28(a)(9); United

States v. Posada-Rios, 158 F.3d 832, 867 (5th Cir. 1998)(direct

appeal; issue waived where brief contained no argument or

11
discussion of facts explaining why district court's findings were

incorrect).

2. Remaining issues

Chase also contends that (1) trial counsel was ineffective for

failing to subpoena Leslie Brown; (2) the trial court's failure to

remove a juror for cause denied Chase an impartial trial; (3) the

trial court erroneously denied him individual, sequestered voir

dire; (4) an impermissible display of emotion by the victim’s widow

during her testimony deprived Chase of a fair trial; (5) the trial

court erred by excluding mitigating evidence involving Robert

Washington's character and opinion testimony as to his own capacity

to kill; and (6) the trial court erred by allowing the jury to

consider the aggravating circumstance of “pecuniary gain.” Chase

has not made the requisite showing to obtain a COA with respect to

any of these issues. See Slack, 529 U.S. at 484; Miller-El, 123 S.

Ct. at 1039.

Finally, Chase asserts that the district court erroneously

denied his motion to amend his 28 U.S.C. § 2254 petition to add

claims under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Penry

v. Johnson, 532 U.S. 782 (2001). Indeed, the district court did

not grant a COA on the issue of its denial of Chase's petition for

permission to amend. Although Chase at least asserted that the

district court should have granted a COA on the various issues

discussed above, he makes no request whatsoever that the COA should

12
be expanded to include this issue. We therefore need not consider

it. See Kimler, 150 F.3d at 431.

We note, however, that even if we were to construe Chase's

brief as a request for COA on this issue, it would be without

merit. As Chase's motion to amend his 28 U.S.C. § 2254 petition

was not filed until considerably more than ten days after the

district court had entered its final judgment, the motion was

properly characterized as a FED. R. CIV. P. 60(b) motion. See

Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665,

667 (5th Cir. 1986). A Rule 60(b) motion that purports to

challenge the denial of a 28 U.S.C. § 2254 petition but actually

attacks the underlying criminal conviction may be construed as a

successive 28 U.S.C. § 2254 application. See Fierro v. Johnson,

197 F.3d 147, 151 (5th Cir. 1999); see also United States v. Rich,

141 F.3d 550, 551-52 (5th Cir. 1998)(28 U.S.C. § 2255 case). The

district court thus properly construed the motion to amend as a

motion to file a successive habeas application. As Chase had not

obtained our permission to file a successive 28 U.S.C. § 2254

application, the district court properly denied the motion. See 28

U.S.C. § 2244(b)(3)(A); Fierro, 197 F.3d at 151.

III. CONCLUSION

For the reasons set forth above, we deny Chase’s request to

expand the COA heretofore granted by the district court, and we

affirm that court’s denial of habeas relief.

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AFFIRMED. Request for expansion of COA DENIED.

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