Griffith v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 21, 2006

_______________________ Charles R. Fulbruge III
Clerk
No. 05-70049
_______________________

MICHAEL DURWOOD GRIFFITH,

Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,

Respondent-Appellee.

On Appeal from the United States District Court
for the Southern District of Texas
Houston Division
No. 4:04-CV-04109

Before JONES, Chief Judge, and WIENER and DEMOSS, Circuit Judges.

PER CURIAM:*

Petitioner Michael Durwood Griffith was convicted and

sentenced to death in Texas state court for murdering Deborah

McCormick while attempting to rob her. After he exhausted state

remedies, Griffith sought a writ of habeas corpus under 28 U.S.C.

§ 2254. The district court denied relief and refused to grant a

certificate of appealability (“COA”). Griffith now requests a COA

on three issues: 1) whether the trial court’s admission of FBI

*
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opinion should not be published and is not precedent except under the limited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.
Special Agent Alan Brantley’s expert testimony violated the Eighth

Amendment; 2) whether the trial court’s denial of Griffith’s

request to provide additional expert assistance violated due

process or the Sixth Amendment; and 3) whether Billy Ringer, Jr.’s

victim impact testimony violated due process. Because no

reasonable jurist could find the district court’s resolution of

these issues debatable or conclude that Griffith’s arguments

deserve to proceed further, we deny the request for a COA on all

issues.

I. BACKGROUND

Griffith’s guilt is not at issue in this appeal. The

jury convicted him of capital murder for stabbing Debra McCormick

multiple times after he sexually assaulted and robbed her. During

the penalty phase, the State proved that Griffith 1) was a former

Sheriff’s Deputy; 2) had a poor reputation for being peaceful and

law-abiding; 3) had a volatile temper; 4) was fired from the

Sheriff’s Department following a misdemeanor conviction for

domestic abuse; 5) was angry, physically and verbally abusive, and

extremely possessive and controlling toward two ex-wives and two

ex-girlfriends; and 6) was violent with his children. The State

also demonstrated that Griffith had committed a bank robbery in

which he shot a teller in the back of the head, and a bridal shop

robbery during which he sexually assaulted a sales clerk.

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 The defense countered that Griffith’s mother had a

drinking problem, was often angry and violent when drunk, and

favored his brother. Further, Griffith received numerous

professional awards, as well as praise from supervisors and people

in the community. Griffith’s former coworkers testified that

Griffith was highly competent and professional, and a compassionate

supervisor and friend, and that he was devastated after being

fired.

Both the defense and the State introduced evidence

regarding Griffith’s future dangerousness. The defense presented

testimony from Dr. Toby Meyers, Dr. Edward Friechman, Dr. David

Hopkinson, and Dr. Mitch Young. Dr. Meyers, the director of a

program for people who have engaged in violence against an intimate

partner, testified that he had worked with Griffith in the past,

that Griffith had acknowledged that he had a problem as a domestic

abuser, and that Griffith worked diligently in the group and

benefitted from the experience.

Dr. Friechman, a clinical psychologist, testified that

Griffith had borderline personality disorder and/or dissociative

disorder. He noted that Griffith’s violence toward his wives and

girlfriends was triggered by actions that reminded him of his

neglectful mother. He also opined that Griffith’s identity had

been connected to his job as a law enforcement officer, that his

job was the “glue” that held him together emotionally, and that

when he lost his job, his sense of reality became chaotic,

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resulting in intense anger. Friechman further opined that the

structure of prison life would serve as a “glue” for Griffith,

although he conceded that Griffith would be dangerous if he ever

escaped. Dr. Hopkinson’s testimony was similar.

Dr. Young, a psychiatrist, also diagnosed Griffith as

exhibiting borderline personality disorder, and opined that as long

as Griffith was in a structured environment, he would function

normally. If he had no contact with women, Griffith would not be

dangerous in prison.

In rebuttal, the State called Allan Brantley, a Special

Agent at the FBI’s National Center for the Analysis of Violent

Crime. After analyzing Griffith’s background and crimes, Brantley

concluded that Griffith’s actions were motivated by his sexual

drive. Brantley also noted that such sexual drives do not go away,

and therefore there was a high probability that Griffith would

engage in future acts of violence. Brantley compared Griffith to

a sexual predator, and concluded that, if isolated from females,

Griffith would look for similar victims within the available

population, which could include weaker males. Additionally,

Brantley noted that prisoners encounter women and children within

prison systems.

Finally, the State called Billy Ringer, Jr., the brother

of Debra McCormick, to testify. Ringer, Jr. had a close

relationship with his sister. At one time, she worked for him at

his medical practice and was much-loved by all his patients.

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McCormick and her mother, Mary Jane Ringer, were also very close;

the two enjoyed running the family business together. Ringer, Jr.

said that McCormick’s death adversely affected their father, Billy

Ringer, Sr.; McCormick was the heart of the family who planned

birthday, holiday, and family events; and she was a good Christian.

Ringer, Jr. added his belief that, because of his sister’s death,

their father gave up his fight against cancer and passed away.

The jury found that, if sentenced to life imprisonment,

Griffith would constitute a continuing threat to society, and that

the mitigating evidence was not sufficient to justify a life

sentence. The judge then sentenced Griffith to death. The Texas

Court of Criminal Appeals affirmed Griffith’s conviction and

sentence, Griffith v. State, 983 S.W.2d 282 (Tex. Crim. App.

1998), and denied Griffith’s petition for a writ of habeas corpus.

Ex Parte Griffith, No. 56,987-01 (Tex. Crim. App. Oct. 8, 2003).

Griffith’s subsequent federal petition for writ of habeas corpus

also was denied. Griffith v. Dretke, 2005 WL 2372044, at *9 (S.D.

Tex. Sept. 27, 2005).

II. DISCUSSION

To obtain a COA under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), which governs this case,

Griffith must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v.

Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003). Thus,

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he “must demonstrate that reasonable jurists could find the

district court’s resolution of his constitutional claims debatable

or that reasonable jurists could conclude that the issues presented

are adequate to deserve encouragement to proceed further.”

Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir. 2005) (citing

Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039). “This threshold

inquiry does not require full consideration of the factual or legal

bases adduced in support of the claims.” Id. Rather, it only

“requires an overview of the claims in the habeas petition and a

general assessment of their merits.” Id. Nevertheless, “[b]ecause

the present case involves the death penalty, any doubts as to

whether a COA should issue must be resolved in [the defendant’s]

favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).

Against these background criteria, we address each of

Griffith’s issues.

A. The admission of Brantley’s expert testimony

Griffith argues that FBI Special Agent Allan Brantley’s

testimony during the penalty phase of Griffith’s trial violated his

Eighth and Fourteenth Amendment rights. Griffith contends that, by

associating him with homosexual conduct, the State created a

substantial danger that the jury would use the testimony to

conclude that he would be a future danger simply because they find

such conduct morally reprehensible. The district court determined

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that this claim was procedurally defaulted because Griffith had not

presented it to the state courts.

AEDPA requires that a habeas petitioner exhaust available

state remedies before raising a claim in a federal habeas petition.

See 28 U.S.C. § 2254(b)(1). To exhaust state remedies, a peti-

tioner “must have fairly presented the substance of his claim to

the state courts.” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.

1997). “It is not enough that all the facts necessary to support

the federal claim were before the state courts or that a somewhat

similar state-law claim was made.” Anderson v. Harless, 459 U.S.

4, 6, 103 S. Ct. 276, 277 (1982) (internal citation omitted).

Therefore, the exhaustion requirement is not satisfied “where

petitioner advances in federal court an argument based on a legal

theory distinct from that relied upon in the state court.” Vela v.

Estelle, 708 F.2d 954, 958 n.5 (5th Cir. 1983).

On direct appeal in state court, Griffith relied upon

Rule 702 of the Texas Rules of Evidence and Aguilar v. State, 887

S.W.2d 27 (Tex. Crim. App. 1994), to argue that Brantley’s

testimony was not reliable and would not assist the jury in

deciding the future dangerousness issue because Brantley could

offer no more expertise in deciding the issue than the jury already

possessed on its own. This is not the issue Griffith raised in the

district court. For the first time, Griffith contended that the

State violated his rights because, by associating him with

homosexual conduct, the State created a substantial danger that the

7
jury would use the testimony to find Griffith would be a future

danger simply because it found such conduct morally reprehensible.

We agree with the district court that Griffith did not fairly

present the substance of this claim to the state courts, and that

it was procedurally defaulted. Reasonable jurists could not debate

the district court’s resolution of this claim.

Additionally, the district court dismissed Griffith’s

unexhausted claim with prejudice because it determined that, on the

merits, pursuing the claim in the state forum would be futile. See

28 U.S.C. § 2254(b)(2) (“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.”). Griffith contends that Brantley’s testimony invited the

jury to impose a death sentence based on lawful conduct, and

therefore, in light of Lawrence v. Texas, 539 U.S. 558, 123 S. Ct.

2472 (2003), violated his Eighth Amendment rights. The district

court noted that Brantley never implied that Griffith should be

sentenced to death because he was homosexual; rather, Brantley

testified that Griffith would present a threat to the prison

population because he is a sexual predator who, in the absence of

women, would sexually assault weaker fellow inmates. The district

court determined that it was the likelihood of sexual assault, not

the fact that the victim of the assault may be the same sex, that

was the subject of Brantley’s testimony. Accordingly, the court

8
found that Griffith’s argument was without merit, and thus

dismissed it with prejudice.

Brantley’s testimony was relevant to the future

dangerousness special issue. The Eighth and Fourteenth Amendments

require that a jury “must be allowed to consider on the basis of

all relevant evidence not only why a death sentence should be

imposed, but also why it should not be imposed.” Jurek v. Texas,

428 U.S. 262, 271, 96 S. Ct. 2950, 2956 (1976). In Dawson v.

Delaware, 503 U.S. 159, 112 S. Ct. 1093 (1992), the Supreme Court

“emphasiz[ed] that ‘the sentencing authority has always been free

to consider a wide range of relevant material.’” Id. at 164, 112

S. Ct. at 1097 (citing Payne v. Tennessee, 501 U.S. 808, 820-21,

111 S. Ct. 2597, 2606 (1991)). Furthermore, although it is well

settled that the State may not limit consideration of any relevant

mitigating circumstance, Payne, 501 U.S. at 824, 111 S. Ct. at

2608, neither is the State prevented from rebutting the mitigating

evidence of the defendant. Dawson, 503 U.S. at 167, 112 S. Ct. at

1098-99. Thus, because defense experts hypothesized that Griffith

would no longer present a future danger to society in prison

because he would no longer have access to women, evidence that

Griffith would continue to be a sexual predator regardless of the

sex of the victim was certainly relevant to the issue of future

dangerousness, and the State was entitled to offer such evidence.

Furthermore, Brantley testified that Griffith was likely to

encounter women and children inside the prison, indicating that, as

9
an incurable sexual predator, he was likely to have some

opportunities to assault females and juveniles in addition to

weaker male prisoners.

Reasonable jurists could not debate the district court’s

conclusion that this claim is both unexhausted and meritless, nor

could they conclude that this issue is adequate to deserve

encouragement to proceed further; therefore, we will not issue a

COA. See Martinez, 404 F.3d at 884.

B. Trial court’s denial of additional expert assistance

Griffith next argues that the trial court violated his

rights when it refused to fund Dr. Theodore Blau as an expert

witness. Griffith contends that the court’s refusal violated his

due process, confrontation, and effective assistance of counsel

rights. Griffith asserts that, without the appointment of

Dr. Blau, he was unable to cross-examine Brantley or rebut

Brantley’s testimony with defense expert testimony.

The Texas Court of Criminal Appeals set forth the facts

relevant to this issue in its opinion on direct appeal:

[A]ppellant filed a motion on November 1, 1995,
requesting the appointment of psychiatrist Mitchell Young
and psychologist Ed Friedman. The trial court granted
this request, but limited the funds available to
$6,000.00. According to Dr. Young’s letter to defense
counsel, psychologist David Hopkinson would also be
helping with the case. On November 22, 1995, appellant
filed two additional motions requesting the appointment
of “expert assistance.” Each of these motions
specifically asked for the appointment of psychologist
Dr. Theodore Blau. Appellant urged his motion be granted
because Blau was needed to respond to State’s expert, FBI

10
 Special Agent Dr. Allan Brantley, who was going to use a
“threat assessment technique” (apparently similar to a
future dangerousness analysis) and “compare the defendant
to profiles of certain serial killers and discuss
[appellant’s] similarity to such individuals.” Blau was
apparently needed to show why such testimony was not
“scientifically validated” and should, therefore, be held
inadmissible. No affidavits or other evidence of need
were included with the motion.

In considering the motion prior to trial, the trial judge
asked appellant whether, if she granted his motion and
appointed Blau, Blau was going to listen to Brantley’s
testimony. Appellant responded that he did not think so.
The judge also asked appellant why one of the
psychologists or the psychiatrist that had already been
appointed could not rebut Brantley’s testimony.
Appellant responded that Brantley’s testimony was not
psychological in nature, but instead was based upon a
forensic analysis. Appellant asserted that Blau was
necessary because he was one of the people who developed
the techniques about which Brantley would be testifying
and he was the only non-FBI person counsel was aware of
who utilized them. The judge overruled his request.

Prior to Brantley’s testimony at punishment, the trial
court held a hearing pursuant to Texas Rules of Criminal
Evidence 702-705 to determine Brantley’s qualifications
and the bases for his testimony. Brantley told the judge
that he was going to render an opinion on appellant’s
probability for being a future danger and that he was
going to base that opinion upon crime scene photographs,
investigative reports, interviews, autopsy photographs,
school records, work records, and “everything that [he]
could get [his] hands on.” Brantley stated that he was
not testifying from a psychological perspective per se,
but rather from his experience in the criminal justice
field. Brantley also told the judge that he did not
intend to use the “profiling” technique of which
appellant complained. Appellant challenged Brantley’s
testimony asserting that it was based on novel
methodology and was cumulative because the State had
established the same information through the
cross-examination of appellant’s experts. The judge held
the testimony admissible.

Griffith v. Dretke, 983 S.W.2d 282, 285-86 (Tex. Crim. App. 1998).

11
 1. Due Process

Although the trial court had already appointed three

experts to assist Griffith — two psychologists and a psychiatrist

— Griffith argues that these experts were insufficient because they

did not have a law enforcement background; and the court was

obliged to provide funding for a defense expert who was familiar

with the basis for Brantley’s testimony and could provide rebuttal.

An indigent defendant is entitled to funding for

psychiatric expert assistance when he “demonstrates to the trial

judge that his sanity at the time of the offense is to be a

significant factor at trial.” Ake v. Oklahoma, 470 U.S. 68, 82-83

105 S. Ct. 1087, 1097 (1985). This circuit has extended this rule

to apply to the assistance of nonpsychiatric experts where the

evidence at issue is “both critical to the conviction and subject

to varying expert opinion.” Yohey v. Collins, 985 F.2d 222, 227

(5th Cir. 1993) (internal quotation marks omitted). However, an

indigent defendant does not have an automatic right to expert

assistance upon demand. See id. Rather, he must “establish a

reasonable probability that the requested experts would have been

of assistance to the defense and that denial of such expert

assistance resulted in a fundamentally unfair trial.” Id.

The district court determined that Dr. Blau’s assistance

was not necessary because 1) the specific issue in which Blau is an

expert, “profiling,” did not come up in Brantley’s testimony; and

12
2) the other defense experts could adequately rebut Brantley’s

testimony. Accordingly, essentially the same state court rulings

were not unreasonable applications of clearly established federal

law.

Griffith asserts that Dr. Blau was needed to combat

Brantley’s testimony involving a “profiling” technique. However,

Brantley informed the trial court, prior to his testimony, that he

would not be presenting testimony based upon the “profiling”

technique, and the judge determined that Brantley did not rely upon

profiling in forming his opinion. Additionally, Griffith argues

that his three appointed experts could not adequately assist with

the cross-examination or rebuttal of Brantley’s testimony.

Although Griffith complained that his experts were unfamiliar with

Brantley’s techniques, Brantley’s opinion of future dangerousness

was based upon his evaluation of the evidence. The defense experts

also provided future dangerousness testimony based upon their

evaluation of Griffith and the evidence. The experts’ frames of

reference and methodologies may have differed, but all of them

relied to some extent on Griffith’s prior conduct to predict his

future propensity for violence; therefore, it is unclear why

Griffith’s expert testimony could not provide assistance in

rebutting Brantley’s testimony.

Finally, Griffith has failed to establish a reasonable

probability that the court’s denial of Dr. Blau’s assistance

resulted in a fundamentally unfair trial. See Yohey, 985 F.2d at

13
227. The trial court provided Griffith three experts; the State

countered in rebuttal with one expert. The fact that Griffith did

not have a fourth expert to rebut Brantley’s testimony does not

render his trial fundamentally unfair, given that three of the four

experts who testified agreed that Griffith would not be a future

danger in prison. Additionally, the State’s case for future

dangerousness, even without Brantley, was extremely strong: The

facts of the crime were horrific and brutal; Griffith’s former

supervisor testified that Griffith had a bad reputation for being

a peaceful and law abiding citizen, was prone to spontaneous

eruptions, and was terminated from his job for domestic abuse;

Griffith threatened and physically abused wives and girlfriends;

and Griffith sexually assaulted one woman and shot another during

the course of prior robberies.

2. Confrontation

Griffith next contends that the trial court’s denial of

funds for the appointment of Dr. Blau violated his Sixth Amendment

right to confront Brantley. “The Confrontation Clause of the Sixth

Amendment guarantees the right of an accused in a criminal

prosecution ‘to be confronted with the witnesses against him.’”

Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1435

(1986)(quoting U.S. CONST. AMEND. VI). This right includes the right

to cross-examination, but “trial judges retain wide latitude . . .

to impose reasonable limits on such cross-examination based on

14
concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation that

is repetitive or only marginally relevant.” Id. at 679, 106 S. Ct.

at 1435.

This issue is meritless. The trial court did not

prohibit cross-examination or inquiry into Brantley’s techniques or

methods for arriving at his conclusion. The record reflects that

Griffith’s counsel cross-examined Brantley thoroughly. The

district court also determined, as noted supra, that Dr. Blau “had

nothing relevant to offer that could not be presented through the

testimony of Griffith’s other . . . experts.” Griffith v. Dretke,

2005 WL 2372044, at *9 (S.D. Tex. Sept. 27, 2005).

In light of the lack of relevance of Dr. Blau’s proposed

testimony on “profiling,” Griffith’s admission that Dr. Blau was

not going to be present during Brantley’s cross-examination, and

the extensiveness of the cross-examination of Brantley, reasonable

jurists could not debate the district court’s conclusion that

Griffith’s Sixth Amendment right to confront Brantley was not

violated by the trial court’s denial of funds for the appointment

of Dr. Blau.

3. Effective Assistance

Griffith next attempts to reargue his expert assistance

claim under the guise of a Strickland claim. Griffith contends

that the trial court’s refusal to appoint Dr. Blau rendered defense

15
counsel ineffective and prejudiced Griffith because counsel was

unable to adequately prepare for the punishment phase or cross-

examine Brantley.

To establish a violation of the Sixth Amendment right to

counsel, Griffith must show that his counsel’s representation was

deficient, and the deficiency prejudiced his defense. Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

The district court found that Griffith could not meet Strickland’s

requirements for his ineffective assistance of counsel claim

because Dr. Blau’s testimony presented nothing relevant that

Griffith’s other psychological experts could not address.

Griffith, 2005 WL 2372044, at *9.

Although Griffith claims ineffective assistance of

counsel, he sets forth no act or omission on the part of trial

counsel that rendered his assistance ineffective. In fact, his

counsel made every effort to obtain Dr. Blau’s assistance and to

prevent or discredit Brantley’s testimony. Counsel moved twice for

the appointment of Dr. Blau, setting forth reasons why his

assistance was necessary; counsel objected to the admission of

Brantley’s testimony in a hearing pursuant to Rules 702-05 of the

Texas Rules of Criminal Evidence; and counsel extensively cross-

examined Brantley. Therefore, in the absence of any deficiency by

counsel, or any prejudice caused by a deficiency, Griffith cannot

make a prima facie case under Strickland. Reasonable jurists could

not debate the district court’s resolution of this claim. No COA

16
is appropriate for Griffith’s claims relating to the trial court’s

refusal to appoint Dr. Blau as an expert.

C. Billy Ringer Jr.’s victim impact testimony

Finally, Griffith argues that the victim impact testimony

of Billy Ringer, Jr., McCormick’s brother, violated the Due Process

Clause. Specifically, Griffith objects to Ringer, Jr.’s statement

that the victim’s death caused their father, Billy Ringer, Sr., to

lose his will to live; he believes the jurors punished him for the

death of Ringer, Sr. The Supreme Court has held that the Eighth

Amendment does not bar the admission of victim impact testimony.

Payne, 501 U.S. at 827, 111 S. Ct. at 2609. However, if the

evidence “is so unduly prejudicial that it renders the trial

fundamentally unfair, the Due Process Clause of the Fourteenth

Amendment provides a mechanism for relief.” Id. at 824, 111 S. Ct.

at 2608.

Griffith contends that Ringer, Jr.’s testimony was false

and therefore unduly prejudicial. Griffith’s only support for his

proposition is citations to medical journals for generic examples

of the typical low survival rates for people with the type of

cancer Ringer, Sr. suffered from. Ringer, Jr., however, testified

simply that his father showed progress before Deborah’s murder but

stopped eating on news of the murder and died shortly thereafter.

The district court found that there was no evidence that Ringer,

Jr.’s testimony was false or misleading, and therefore determined

17
that it was admissible under Payne. Griffith, 2005 WL 2372044, at

*9.

Griffith also contends that after hearing Ringer, Jr.’s

testimony, the jurors punished him not only for the death of

McCormick, but for the death of her father as well. But as the

district court held, Ringer, Jr.’s testimony was not so emotionally

charged as to make it inadmissible under Payne. The case presented

by the prosecution supports the district court’s conclusion.

Ringer, Jr. was the only witness to provide victim impact

testimony. Furthermore, the prosecution made only one passing

reference to that testimony in closing arguments, focusing instead

on the brutal facts of the crime, Griffith’s brutal attacks on

other women, the numerous threats and physical abuse Griffith

inflicted upon his wives and girlfriends, the other evidence

admitted at punishment, and the jury charge. Reasonable jurists

could not debate the district court’s resolution of this claim, and

could not conclude that the issues presented are adequate to

deserve encouragement to proceed further; thus we will not grant a

COA. See Martinez, 404 F.3d at 884.

III. CONCLUSION

For the reasons discussed above, we deny Griffith’s

request for a COA on all claims and as such lack jurisdiction to

review the district court’s denial of habeas relief on these

claims. See Miller-El, 537 U.S. at 335-36, 123 S. Ct. at 1039.

18
COA DENIED.

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