IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-60067
_____________________
HAROLD AMOS BARNARD, JR.,
Petitioner-Appellant,
v.
JAMES A. COLLINS, Director, Department of Criminal
Justice, Institutional Division,
Respondent-Appellee.
_________________________________________________________________
On Application for Certificate of Probable Cause
and Motion for Stay of Execution
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(January 31, 1994)
Before KING, JOLLY, and SMITH, Circuit Judges.
KING, Circuit Judge:
Harold Amos Barnard, Jr., a death-row inmate in the Texas
Department of Criminal Justice (TDCJ), Institutional Division,
filed his second petition for federal habeas corpus relief,
pursuant to 28 U.S.C. § 2254, in the United States District Court
for the Southern District of Texas on January 27, 1994. Barnard
is scheduled to be executed after midnight on February 2, 1994.
Barnard requested that the district court stay his execution,
hold an evidentiary hearing on the issue of his competency, and
issue a writ of habeas corpus vacating his death sentence.
Barnard also requested that the district court appoint counsel
for him pursuant to 21 U.S.C. § 848(q)(4)(B). On January 28,
1994, the district court denied Barnard all relief and a
certificate of probable cause (CPC). Barnard then filed a notice
of appeal to this court, along with an application for a CPC, a
motion to stay his execution, and a renewed motion for
appointment of counsel. Although the district court denied
relief on the ground that Barnard had abused the writ, we do not
reach this question in our consideration of his entitlement to a
CPC and a stay of execution, but instead hold that Barnard has
not made a substantial showing of the denial of a federal right.
Thus, we deny his application for a CPC and his motion to stay
his execution. We reverse the district court's denial of
counsel, and in the light of Barnard's exigent circumstances, we
grant his motion to appoint counsel.
I. BACKGROUND
A jury convicted Barnard of capital murder on April 1, 1981,
for the killing of sixteen-year-old Tuan Nguyen during a robbery
of a convenience store in Galveston, Texas, on June 6, 1980.1
After a punishment hearing, the jury affirmatively answered the
three special issues submitted pursuant to Texas law, thereby
requiring that Barnard be sentenced to death.
On April 8, 1987, the Texas Court of Criminal Appeals
affirmed Barnard's conviction, and on July 17, 1987, the state
trial court pronounced Barnard's death sentence and set his
1
A more detailed recitation of the facts can be found in
Barnard v. State, 730 S.W.2d 703 (Tex. Crim. App. 1987), cert.
denied, 485 U.S. 929 (1988).
2
execution for September 23, 1987. On February 29, 1988, the
Supreme Court denied Barnard's petition for writ of certiorari.
See Barnard v. State, 730 S.W.2d 703 (Tex. Crim. App. 1987),
cert. denied, 485 U.S. 929 (1988).
The Texas Court of Criminal Appeals denied Barnard's first
petition for state habeas corpus relief on January 6, 1989, and
Barnard's execution was rescheduled for March 14, 1989. On
February 21, 1989, Barnard filed a petition for federal habeas
corpus relief and an application for stay of execution in the
United States District Court for the Southern District of Texas.
The district court stayed the execution pending its consideration
of Barnard's petition.
On December 12, 1989, the district court entered a final
judgment dismissing the petition for a writ of habeas corpus and
lifting the stay of execution. After Barnard filed a notice of
appeal, the district court granted a CPC and entered a stay of
execution on February 7, 1990.
On appeal, Barnard contended that the district court erred
in rejecting his claims that (1) the Texas death sentencing
statute prevented the jury in his case from considering and
giving effect to his mitigating evidence in violation of the
Sixth and Eighth Amendments to the United States Constitution
under Penry v. Lynaugh, 492 U.S. 302 (1989); (2) the state trial
court's instruction on temporary insanity caused by intoxication
prevented the jury from giving any mitigating consideration to
this evidence unless Barnard proved that he was so intoxicated
3
that he was insane at the time of the offense; (3) evidence of
his good character--including evidence of his carpentry skills,
work history, and familial responsibility and support--was not
adequately treated within the special issues; and (4) Barnard had
received ineffective assistance of counsel. Finding no error, a
panel of this court affirmed the district court's denial of
habeas relief and vacated the stay of execution. Barnard v.
Collins, 958 F.2d 634, 643 (5th Cir. 1992), cert. denied, 113 S.
Ct. 990 (1993). Rehearing was denied on May 22, 1992. Barnard
v. Collins, 964 F.2d 1145 (5th Cir. 1992). The state trial court
rescheduled Barnard's execution for March 16, 1993.
The Supreme Court denied certiorari review of Barnard's
petition for federal habeas relief on January 11, 1993. Barnard
v. Collins, 113 S. Ct. 990 (1993). On March 8, 1993, the Supreme
Court also denied Barnard's application for a stay of execution
and petition for rehearing, in which he reargued his Penry claim
in light of the Court's decision in Graham v. Collins, 113 S. Ct.
892 (1993).
On March 10, 1993--six days before his then current
execution date and nearly five years after the execution date
which was set after Barnard's conviction became final--Barnard
filed his second petition for state habeas relief, in which he
asserted that he was incompetent to be executed under Ford v.
Wainwright, 477 U.S. 399 (1986), and that the Texas special
issues did not allow the jury to reflect adequately the
mitigation value of his proffered evidence. He also argued that
4
Article 8.04(b) of the Texas Penal Code, which the judge read to
the jury as an instruction at the sentencing phase of the trial,
was unconstitutional both on its face and as applied. On March
15, 1993, the state court issued its findings and conclusions,
recommending that habeas relief be denied. Later that same day,
the Texas Court of Criminal Appeals granted Barnard a stay of
execution.
On May 11, 1993, the Texas Court of Criminal Appeals ordered
the state trial court to hold an evidentiary hearing on Barnard's
claim that he was incompetent to be executed. That hearing was
held on July 22, 1993. The trial court then issued its findings
and conclusions and recommended that Barnard's petition for
habeas relief be denied on September 29, 1993. On November 8,
1993, the Texas Court of Criminal Appeals adopted the trial
court's findings and conclusions and denied Barnard's petition
for habeas relief. Barnard's execution date was then rescheduled
for February 2, 1994.
On January 27, 1994, Barnard filed his second habeas
petition in federal district court. He requested that the
district court stay his execution, hold an evidentiary hearing to
determine whether Barnard was competent to be executed, and issue
a writ of habeas corpus vacating his death sentence. The
attorney who had filed Barnard's second federal habeas petition
also requested that the district court appoint him to represent
Barnard pursuant to 21 U.S.C. § 848(q)(4)(B). On January 28,
1994, the district court denied Barnard all relief, denied
5
Barnard a CPC, and denied his attorney's motion for appointment
of counsel. Barnard then filed a notice of appeal with this
court, along with an application for a CPC, a motion to stay his
execution, and a renewed motion for appointment of counsel.
II. COMPETENCY ISSUE
In response to Barnard's petition, the State moved to
dismiss the petition as an abuse of the writ, pursuant to Rule
9(b), Rules Governing Section 2254 Cases. Under Rule 9(b), a
second or successive petition in which new grounds for relief are
alleged may be dismissed if the petitioner's "reasonable and
diligent investigation" would have resulted in his presenting
these grounds in a previous habeas petition. See McCleskey v.
Zant, 499 U.S. 467, 493 (1991). Once abuse of the writ has been
pleaded by the State, raised by the district court sua sponte or
raised as required in Hawkins v. Lynaugh, 862 F.2d 487, 489 (5th
Cir.), stay granted, 109 S. Ct. 569 (1988), vacated and remanded
on other grounds, 110 S. Ct. 1313 (1990), the petitioner must
show by a preponderance of the evidence that he has not abused
the writ or otherwise violated Rule 9(b). Andre v. Guste, 850
F.2d 259 (5th Cir. 1988); Johnson v. McCotter, 803 F.2d 830, 832
(5th Cir. 1986).
According to the district court, it was clear from the
evidence put forth by Barnard that he could not meet this burden.
The district court found that although there was some evidence
that Barnard's condition had persistently worsened over the
years, it was abundantly clear that the question of his
6
competency to be executed was extant at the time of his first
habeas petition because "Barnard's habeas counsel have known and
asserted for years that Barnard's sanity is questionable." Thus,
because the district court determined that Barnard failed to
demonstrate good cause for his failure to raise the issue of his
competency in his earlier writ, the court dismissed Barnard's
petition on grounds that he had abused the writ.
We need not reach the question of whether Barnard abused the
writ for purposes of his entitlement to habeas relief on the
merits. Even if we assume arguendo that Barnard did not abuse
the writ, we find that Barnard has not made a substantial showing
of a denial of a federal right, and thus we deny his application
for a CPC and his motion to stay his execution.
Standard of Review
This court reviews an application for a CPC using the same
standard as that used by the district court in the first
instance. That is, we will grant a CPC to appeal only if the
applicant can make a substantial showing of a denial of a federal
right. Barefoot v. Estelle, 463 U.S. 880. 893 (1983); Drew v.
Collins, 5 F.3d 93, 95 (5th Cir. 1993), petition for cert. filed
(Jan. 5, 1994). This standard does not require the applicant to
show that he would prevail on the merits, but it does require him
to show that the issues he presents are debatable among jurists
of reason. Barefoot, 463 U.S. at 893 n.4; Drew, 5 F.3d at 95.
The same standard essentially applies to an application for a
stay of execution. Drew, 5 F.3d at 95 (citing Delo v. Stokes,
7
495 U.S. 320, 321 (1990) ("A stay of execution pending
disposition of a second or successive federal habeas petition
should be granted only when there are 'substantial grounds upon
which relief might be granted.'" (quoting Barefoot, 463 U.S. at
895))).
Discussion
Barnard argues that his application for CPC should be
granted because he is presently incompetent to be executed under
Ford v. Wainright, 477 U.S. 399 (1986). He asserts that the
state trial court's finding that Barnard was competent to be
executed, issued after an evidentiary hearing held on July 22,
1993, is not entitled to be given a "presumption of correctness"
in federal court because the state court's treatment of the
competency issue was not "full and fair."
Section 2254(d) directs federal habeas courts to presume the
correctness of a state court
determination after a hearing on the merits of a factual
issue . . . unless the applicant shall otherwise establish
or it shall otherwise appear, or the respondent shall admit
. . . . . .
(1) that the factfinding procedure employed by the
State court was not adequate to afford a full and fair
hearing; . . .
(8) or unless . . . the Federal court on a
consideration of such part of the record as a whole [on
which the factfinding was based] concluded that such
factual determination is not fairly supported by the
record.
28 U.S.C. § 2254(d); see Sumner v. Mata, 449 U.S. 539, 546-47
(1981). A state court's conclusion regarding a petitioner's
competency to be executed is entitled to such a presumption.
8
Garrett v. Collins, 951 F.2d 57, 59 (5th Cir. 1992); see Ford,
477 U.S. at 410-411.
The state habeas court found, after a full evidentiary
hearing in which the court was able to review both live and
affidavit testimony, that Barnard was competent to be executed
under the Ford standard, i.e., that a prisoner must understand
the fact of his impending execution and the reason for it.2
During the hearing, at which Barnard was present but did not
testify, Barnard presented, in addition the testimony of his
former attorney, the live medical testimony of Dr. Philip Murphy,
a psychologist, and Dr. Allen Childs, a psychiatrist, both of
whom had recently interviewed Barnard.3 They agreed that Barnard
suffers from delusions that he is being persecuted by various
minority groups. In rebuttal, the State presented the live
testimony of Dr. Edward B. Gripon, who had been ordered by the
court to examine Barnard and who testified that although Barnard
suffered serious delusions, Barnard understood the fact of his
2
This court has determined that the plurality opinion in
Ford was made a majority opinion by the concurring opinion of
Justice Powell, whose enunciated standard for competency to be
executed was that a person know the fact of his impending
execution and the reason for it. Lowenfield v. Butler, 843 F.2d
183, 187 (5th Cir. 1988). Accordingly, this court has adopted
the standard as enunciated by Justice Powell as the Ford
standard. See, e.g., Garrett v. Collins, 951 F.2d 57 (5th Cir.
1992); Lowenfield, 843 F.2d at 187.
3
Although Barnard had also submitted other medical reports
and affidavits to the state trial court, the court found that
only the reports of Drs. Murphy and Childs related to a current
diagnosis of Barnard.
9
impending execution and the reason for it. In one of its factual
findings, the state court stated that
[b]ased on the reports and evaluations and testimony of
Applicant's and the Court's mental health experts, Texas
Department of Criminal Justice medical records, and the
sworn statements of TDCJ personnel, the Court finds that
Applicant comprehends the nature, pendency, and purpose of
his execution. Applicant knows that he was found guilty of
killing a young boy in a robbery in Galveston County and
that his pending execution was because he had been found
guilty of that crime. He knew of the date of his scheduled
execution and that it would be lethal injection by use of an
intravenous injection. Applicants' experts do not establish
that he is unaware of the fact of or the reason for his
impending execution, but rather that his perception of the
reason for his conviction and pending execution is at times
distorted by a delusional system in which he attributes
anything negative that happens to him to a conspiracy of
Asians, Jews, Blacks, homosexuals, and the Mafia (emphasis
added).
The state court thus found that Barnard knew that he was going to
be executed and why he was going to be executed--precisely the
finding required by the Ford standard of competency.4
Barnard contends that this finding should not be given a
presumption of correctness under § 2254(d) because the trial
court's hearing could not possibly have been "full and fair" if
the trial court ignored the testimony of seven impartial
4
We note that Barnard's reliance on the Supreme Court's
decision in Godinez v. Moran, 113 S. Ct. 2680 (1993), for the
proposition that the standard for a prisoner's competency to be
executed should include an "assistance prong" is misplaced. In
Godinez, the Supreme Court held that the competency standard in
the context of standing trial or in the context of waiving one's
right to counsel or pleading guilty were the same: that a
defendant have a sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding and a
rational as well as factual understanding of the proceedings
against him. Id. at 2686. The Godinez Court did not, however,
mandate the addition of an "assistance prong" to the standard for
determining whether a person was competent to be executed.
10
witnesses in favor of one court-appointed witness. However, we
agree with the district court that an unexpected outcome does not
automatically render the state procedure unfair--especially when
Barnard was afforded a full-blown evidentiary hearing. We thus
find meritless Barnard's contention that Texas did not afford him
a "full and fair" proceeding.
Barnard also argues that the state court's finding of
competence should not be given a presumption of correctness
because such a determination is not "fairly supported by the
record." This argument, too, is without merit. Although the
state court had before it various affidavits and doctors' reports
on Barnard's competency which Barnard had filed, the court found
that only the reports of Drs. Murphy and Childs--who gave live
testimony for Barnard at the hearing--related to Barnard's
current diagnosis. Dr. Gripon, who testified for the State and
who had recently reviewed Barnard's medical records and
interviewed Barnard, also gave live testimony related to
Barnard's current diagnosis. This court has made it clear that
"deference to a state court's findings is particularly important
'where a federal court makes its determinations based on the
identical record that was considered by the state appellate
court.'" Self v. Collins, 973 F.2d 1198, 1213 (5th Cir. 1992)
(quoting Sumner, 449 U.S. at 547), cert. denied, 113 S. Ct. 1613
(1993). Section 2254(d) "'gives federal habeas courts no license
to redetermine credibility of witnesses whose demeanor has been
observed by the state trial court'" or to disagree with the
11
weight the state court gave to the testimony of those witnesses
whose demeanor the federal habeas court did not observe. Id. at
1214 (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).
Barnard also argues that the state court's finding of
competency should not be given § 2254(d) deference because such a
finding is a mixed question of law and fact and thus not subject
to a presumption of correctness under § 2254(d). The cases to
which Barnard cites for support of this argument, however,
concern the issue of competency to stand trial and not the issue
of competency to be executed. This court has previously
determined that a state court's finding of competency to be
executed is entitled to a presumption of correctness under
§ 2254(d). See Garrett, 951 F.2d at 59; see also Ford, 477 U.S.
at 410-11 (explaining that a federal habeas court is required to
hold an evidentiary hearing on the issue of the petitioner's
competency to be executed if the petitioner shows that one of the
statutory exceptions to § 2254(d) is applicable in his specific
case). Even if we were to conclude, however, that competency to
be executed is a mixed question of law and fact, the pure
factfindings that underlie the state court's determination that
Barnard is competent to be executed are entitled to a presumption
of correctness, and based on those factfindings, we would reach
the same legal conclusion.
For the foregoing reasons, we cannot determine that Barnard
has made a substantial showing of a denial of a federal right.
12
Accordingly, we deny his application for a CPC and his motion to
stay his execution.5
III. APPOINTMENT OF COUNSEL UNDER § 848(q)
Barnard also argues that the district court erred in denying
his motion to have counsel appointed for him, pursuant to 21
U.S.C. § 848(q)(4)(B).6 Although we did not address the question
whether Barnard abused the writ for purposes of his entitlement
to habeas relief on the merits, we address the question of abuse
of the writ here in relation to the district court's denial of
counsel's motion to be appointed under § 848(q)(4)(B).
The district court dismissed Barnard's petition for abuse of
the writ because the court determined that it was "abundantly
clear" that the question of Barnard's sanity was extant at the
time of the filing of his first habeas petition. Nonetheless, we
note that the issue of Barnard's sanity was not urged at trial
(Barnard himself testified at trial) or on direct appeal to the
Texas Court of Criminal Appeals, except as it was incident to his
claims relating to voluntary intoxication. We also note that
more than five years has transpired since Barnard's first
5
We note that the district court ordered that the parties
file no further pleadings in the district court on the issues
raised by Barnard's second habeas petition and associated
filings, "including motions to reconsider and the like." The
Federal Rules of Civil Procedure give litigants the right to file
certain post-judgment motions, and we think it ill-advised to
issue such a directive as a routine matter.
6
Although a CPC is required in order to appeal the denial
of habeas corpus relief, there is no such requirement in order to
appeal the denial of the appointment of counsel under
§ 848(q)(4)(B). See Moreno v. Collins, No. 94-50026, slip op. at
3 n.1 (5th Cir. 1994).
13
scheduled execution date after his conviction became final and
that by the district court's own admission, there is evidence in
the record that Barnard's condition has persistently worsened
over the years.
Further, Texas employs its own abuse of the writ doctrine,
which requires in certain instances that a petitioner show "good
cause" why claims urged in a second or successive petition were
not urged earlier or face dismissal of those claims. See TEX.
CODE CRIM. P. art. 11.07 (Vernon 1977 & Supp. 1993); Ex parte
Emmons, 660 S.W.2d 106, 110 (Tex. Crim. App. 1983); Ex parte
Carr, 511 S.W.2d 523, 525-26 (Tex. Crim. App. 1974). Although
the showing of "good cause" which Texas requires may well not be
the same as the showing of "cause and prejudice" required in
federal cases, we find it relevant that abuse of the writ was not
raised at the state level with respect to Barnard's claim of
incompetency to be executed in his second state habeas petition
and that the Texas Court of Criminal Appeals stayed Barnard's
execution on the eve of the set execution date and mandated an
evidentiary hearing on the issue of competency.
Moreover, our research indicates no reported decision in
which a federal circuit court or the Supreme Court has denied
relief of a petitioner's competency-to-be-executed claim on
grounds of abuse of the writ. Assuming without deciding that the
abuse of the writ doctrine is nonetheless applicable to a
petition for federal habeas relief premised on a Ford claim, the
district court's determination that Barnard's claim constituted
14
an abuse of the writ because he could not show "cause and
prejudice" for his failure to raise this claim in his earlier
petition seems premature in the absence of an evidentiary hearing
or other appropriate proceeding to determine exactly when
Barnard's counsel could have discovered through reasonable
diligence and investigation that Barnard was incompetent to be
executed.7 Because the determination of Barnard's competency to
be executed is a fact-intensive inquiry, the point at which
Barnard's counsel should have initiated that inquiry is equally
fact-intensive. Although after a hearing, the district court
might be in a position to conclude that Barnard's competency
claim should have been raised in his first round of state and
federal habeas petitions (initiated in October 1988), we cannot
say, absent a more complete factual development, that this is
true.
With the foregoing discussion in mind, we believe that the
district court was incorrect in denying counsel's motion for
7
In McCleskey v. Zant, the Supreme Court applied the "cause
and prejudice" analysis it had adopted for cases of procedural
default to an abuse of the writ inquiry. 111 S. Ct. at 1470.
Thus, the Court determined that to excuse his failure to raise a
claim in a previous habeas petition, the petitioner had to show
cause for not raising his claim earlier or face dismissal of his
petition for abuse of the writ. Id. "The requirement of cause
in the abuse of the writ context is based on the principle that
petitioner must conduct a reasonable and diligent investigation
aimed at including all relevant claims and grounds for relief in
the first federal habeas petition." Id. (emphasis added). The
Court also stated that "if petitioner cannot show cause, the
failure to raise the claim in an earlier petition may nonetheless
be excused if he or she can show that a fundamental miscarriage
of justice would result from a failure to entertain the claim."
Id.
15
appointment under 21 U.S.C. § 848(q)(4)(B). On its face,
§ 848(q)(4)(B) does not condition the appointment of counsel on
the substantiality or nonfrivolousness of petitioner's habeas
claims.8 Compare 21 U.S.C. § 848(q)(4)(B) with 28 U.S.C.
§ 1915(d) ("The court may request an attorney to represent any
such person unable to employ counsel and may dismiss the case if
the allegation of poverty is untrue, or if satisfied that the
action is frivolous or malicious."). Even if judicial
interpretation of § 848(q)(4)(B) may later condition the
appointment of counsel on some level of substantiality or
nonfrivolousness in a petitioner's habeas claims, we cannot say
that in the instant case, without the benefit of a hearing on the
subject of whether counsel should have raised earlier the matter
of his competency to be executed, Barnard's competency claim was
such that the district court should have denied counsel's motion
for appointment under § 848(q)(4)(B). The district court
therefore erred in denying counsel's motion on abuse of the writ
grounds. Counsel has a similar motion pending in this court, and
in view of the shortness of time remaining before his execution,
we grant the motion.
8
Section 848(q)(4)(B) provides in pertinent part that
[i]n any post conviction proceeding under section 2254
or 2255 of Title 28, seeking to vacate or set aside a
death sentence, any defendant who is or becomes
financially unable to obtain adequate representation or
investigative, expert, or other reasonably necessary
services shall be entitled to the appointment of one or
more attorneys and the furnishing of such other
services . . . .
16
The district court will be required to hold a hearing at
some future date to determine whether and in what amount fees are
to be awarded Barnard's appointed counsel. As the district court
is already aware, counsel waited more than ten weeks from the
time the Court of Criminal Appeals denied Barnard relief on his
second state habeas petition to file a second federal habeas
petition and a motion to be appointed with the district court--
only a few days before Barnard's scheduled execution. At the
hearing, the district court should determine whether counsel, as
an officer of the court, had good cause for delay in filing
Barnard's second habeas petition and if not, whether the amount
of fees to which counsel would otherwise be entitled should be
reduced as a sanction. See Thomas v. Capital Security Servs.,
Inc., 836 F.2d 866, 878 (5th Cir. 1988) (en banc) ("[T]he basic
principle governing the choice of sanctions is that the least
severe sanction adequate to serve the purpose should be
imposed.").
IV. CONCLUSION
For the foregoing reasons, we DENY Barnard's application for
a CPC and his motion for stay of execution. We REVERSE that
portion of the district court's order denying appointment of
counsel under § 848(q)(4)(B). We grant the motion for
appointment of counsel under § 848(q)(4)(B) and Barnard's
application for in forma pauperis status.
17