United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
January 12, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 03-10425
____________
EMANUEL KEMP, JR.,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
USDC No. 4:99-CV-490-Y
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioner Emanuel Kemp, Jr. (“Kemp”) was convicted of capital murder in Texas and
sentenced to death. He now requests a Certificate of Appealability (“COA”) on six issues.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Kemp was convicted of capital murder for a sexual assault and murder committed in the
course of hijacking a Fort Worth Transit bus. During his state habeas proceedings he was found to
be mentally incompetent to be executed. A subsequent examination revealed Kemp to be competent
to be executed, and his application for writ of habeas corpus was then denied by the Texas Court of
Criminal Appeals. Kemp filed a second petition for habeas relief after a new execution date was set.
The Texas Court of Criminal Appeals held this subsequent habeas petition was barred as an abuse of
the writ. Kemp then filed a habeas application under 28 U.S.C. § 2254, with seven grounds of relief,
all of which were denied by the district court.
In his petition for COA, Kemp claims that he was (1) denied due process during state habeas
proceedings as a result of his incompetence and the operation of the Texas successive writ statute,
codified at TEX. CODE CRIM. PROC. art. 11.071 § 5 (Vernon 2003); (2) denied constitutionally
effective counsel as a result of his incompetence; (3) denied due process and constitutionally effective
counsel as the result of the denial of funds to obtain a mental health expert; (4) denied the right to an
impartial jury when his challenge for cause against a racially prejudiced venire member was denied
by the court; (5) denied the right to an impartial jury when his challenge for cause against a venire
member biased in favor of the death penalty was denied by the trial court; and (6) denied due process
as the result of forced medication without a showing of dangerousness.1
To receive a COA from this Court, Kemp must make a substantial showing of the denial of
a constitutional right. 28 U.S.C. § 2253(c)(2). A substantial showing requires that “reasonable jurists
1
In his federal habeas petition, Kemp also requested relief because he claimed he was not
competent to be executed. The district court dismissed this claim as premature because no execution
date has been set. Because no execution date has yet been set and neither party has challenged the
district court’s ruling, that claim is not currently before us.
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would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The district court is required to evaluate the habeas petition
to see if the state court’s determination “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court.”
28 U.S.C. § 2254(d)(1). In addition, a state court’s findings of fact are entitled to a presumption of
correctness unless the petitioner rebuts that presumption with “clear and convincing evidence.” 28
U.S.C. § 2254(e)(1). When a petition is dismissed on procedural grounds, the petitioner must show
that “jurists of reason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack, 529 U.S. at 484 (emphasis added).
None of Kemp’s claims satisfy the standard for issuing a COA.
Three of Kemp’s claims were dismissed by the district court on procedural grounds because
the state court ruled they were barred from being presented to the state court and Kemp failed to
show cause and prejudice or a fundamental miscarriage of justice for the procedural default. These
claims were: his first claim that he was denied due process as a result of his incompetence and the
operation of the Texas successive writ statute; his second claim that he was denied constitutionally
effective counsel as the result of his incompetence; and his sixth claim that he was denied due process
as the result of forced medication without any showing of dangerousness were dismissed.
A state court denial of a federal claim on state procedural grounds will serve as an adequate
and independent state law ground that forecloses review of such claim in federal court if the state
procedural rule was firmly established and regularly followed at the time it was violated. See Ford
v. Georgia, 498 U.S. 411, 423-24 (1991) (finding that federal review was not foreclosed by state
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procedural ground because state rule not firmly established and regularly followed). The Texas abuse
of the writ doctrine is an adequate state ground to bar federal habeas review. Emery v. Johnson, 139
F.3d 191, 195-96 (5th Cir. 1997). Federal habeas review will be barred unless the petitioner can
demonstrate cause for the default and actual prejudice as a result of the alleged violation of the federal
law, or demonstrate that failure t o consider the claims will result in a fundamental miscarriage of
justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Kemp does not question the district court’s finding that these three claims were procedurally
barred by the Texas abuse of the writ doctrine. Although Kemp does claim cause and prejudice in
his COA petition, he did not plead cause and prejudice for the procedural default to the district court.
“A contention not raised by the habeas petitioner in the district court cannot be raised for the first
time on appeal from that court’s denial of habeas relief.” Johnson v. Puckett, 176 F.3d 809, 814 (5th
Cir. 1999). Because Kemp did not raise the issues of cause and prejudice before the district court,
reasonable jurists could not find it debatable that these claims are procedurally barred. Kemp is not
entitled to COA on these issues.
The district court dismissed Kemp’s third claim, that the denial of funds to obtain mental
health experts denied him both effective assistance of counsel and due process, on the merits. The
district court dismissed because the right of indigent criminal defendants to funds for a mental health
expert to assist in trial preparation and presentation of defense at trial has not been extended to state
post-conviction proceedings. See Caldwell v. Johnson, 226 F.3d 367, 373-74 (5th Cir. 2000)
(refusing to extend the right to funds for mental health expert at trial to hearings determining
competency to be executed). Kemp argues that such funds were needed by his state habeas counsel
to explore whether the trial attorney missed evidence of mental illness that might have been presented
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as mitigating evidence. Essentially, Kemp argues that his state habeas counsel could not be effective
without such funds. However, because there is no right to counsel in habeas proceedings, there is
similarly no right to funding to ensure that the counsel is effective. See Coleman v. Johnson, 501
U.S. 722, 752-53 (1991) (holding there is no right to counsel in state post conviction proceedings).
Moreover, there is no due process right to effective assistance of counsel on capital habeas claims in
Texas. See Ogan v. Cockrell, 297 F.3d 349, 357 (5th Cir. 2002) (rejecting the argument that because
Texas provides a right to counsel o n post-conviction review of death sentences that ineffective
counsel in such a setting denies the Fourteenth Amendment right to due process). Because there is
no due process right to effective counsel, there is no right to funding necessary for effective counsel.
Accordingly, a reasonable jurist could not find it debatable that Kemp’s claim was without merit, and
COA is denied on this issue.
The district court also dismissed Kemp’s claims about the jury selection process on the merits.
However, Kemp has inadequately briefed these issues. He does not state which jurors were
objectionable; instead he refers this Court to his habeas petition filed in the district court.
Incorporation by reference of documents and pleadings filed in the district court into appellate briefs
is not allowed and, accordingly, these arguments are waived. See Northland Ins. Co. v. Stewart Title
Guar. Co., 327 F.3d 448, 452-53 (5th Cir. 2003) (finding that where brief is inadequate due to
incorporation by reference, those arguments are waived).
Kemp has not shown that reasonable jurists could debate the district court’s resolutions of
his constitutional claims, and therefore COA is DENIED on all claims.
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