Crawford v. Epps

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
December 2, 2009

No. 08-70045 Charles R. Fulbruge III
Clerk

CHARLES RAY CRAWFORD

Petitioner - Appellant
v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS

Respondent - Appellee

Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:04-CV-59

Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
In 1994, Charles Ray “Chuck” Crawford was sentenced to death for capital
murder. Crawford’s conviction and sentence were affirmed on direct appeal; his
state application for post-conviction relief was denied by the Mississippi
Supreme Court; his federal § 2254 habeas petition was denied by the federal
district court; and his request for a certificate of appealability (COA) was denied
by the district court. He now moves this court for a COA on eighteen separate

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
 No. 08-70045

claims. We grant him a COA on one of those claims, deny relief on the
remainder, and remand for further proceedings.
FACTS AND PROCEEDINGS
On the evening of January 29, 1993, twenty-year-old Kristy Ray was
abducted from her parents’ home in Chalybeate, Mississippi. At that time,
Charles Ray Crawford was awaiting a February 2 trial on unrelated charges of
aggravated assault and rape. Earlier on January 29, Crawford’s family had
discovered a ransom note in the attic of the house where Crawford was living.
Concerned that Crawford was planning a kidnapping, the family members
consulted the lawyer representing Crawford on the aggravated assault and rape
charges, William Fortier. Fortier then contacted the police to report the
possibility that a crime was being committed. The following day, Fortier’s law
clerk turned over Crawford’s mental health records, which were in his
possession, to the FBI.
Within hours of Ray’s disappearance, local, state, and federal authorities
had begun an investigation. On the evening of January 30, approximately
twenty-four hours after Ray’s disappearance was first reported, officers observed
Crawford approach a residence where they were stationed. Crawford was
arrested; he had a shotgun and switchblade knife in his possession.
Subsequently, Mississippi state police officers and FBI agents administered
Miranda warnings and the FBI agents conducted their first of three interviews
with Crawford. During the first interview, the FBI agents learned from
Crawford that Ray was no longer alive. He then agreed to lead the authorities
to Ray’s body. After approximately one hour of walking through the woods, they
found Ray’s body. She had suffered a stab wound to the heart and left lung and
showed signs of anal penetration.
On February 1, Crawford was interviewed for a second time by the FBI
and state highway patrol officers. He was read his Miranda rights and executed

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a written waiver of those rights. During this interview, Crawford described
additional events leading up to Ray’s murder. He recounted a story in which he
suffered two blackouts, one immediately prior to Ray’s abduction and one prior
to her death. According to Crawford, when he awoke from the second blackout,
he knew immediately that Ray was dead. He stated that he then hid her body
and began to make his way out of the woods.
A third interview was conducted on February 2, in order to help
authorities locate a revolver and knife that Crawford had lost. Crawford told the
interviewers where he had lost the items, which were found together.
Crawford was ultimately charged in a four-count indictment for burglary
of an inhabited dwelling, rape, sexual battery, and capital murder. At his trial,
which began in April 1994, he presented an insanity defense, which included
expert testimony that he suffered from psychogenic amnesia and bipolar
disorder. The jury found Crawford guilty on all four counts.
Following the presentation of evidence at the sentencing phase, the jury
returned a sentence of death on the capital murder conviction. It specifically
found three aggravating factors: (1) that Crawford was previously convicted of
a felony involving the use or threat of violence; (2) that the offense was
committed during the crime of kidnapping; and (3) that the offense was
especially heinous, atrocious, or cruel.
The conviction and death sentence were affirmed on direct appeal by the
Mississippi Supreme Court on March 12, 1998. Crawford v. State, 716 So. 2d
1028 (Miss. 1998) [hereinafter Crawford I]. That court denied Crawford’s
petition for post-conviction relief on December 4, 2003. Crawford v. State, 867
So. 2d 196 (Miss. 2003) [hereinafter Crawford II]. He filed an application for a
writ of habeas corpus under 28 U.S.C. § 2254 in the Northern District of
Mississippi on September 27, 2004. The district court denied that application
on September 25, 2008, Crawford v. Epps, 2008 WL 4419347 (N.D. Miss. Sept.

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25, 2008) [hereinafter Crawford III], and a COA was denied on November 25,
2008. Crawford moves this court for a COA of the district court’s denial of his
writ application.
STANDARD OF REVIEW
Before appealing a district court’s denial of habeas relief under § 2254, a
petitioner must obtain a COA. See 28 U.S.C. § 2253(c). This court may issue a
COA only if the petitioner “has made a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003). “[A] claim can be debatable even though
every jurist of reason might agree, after the COA has been granted and the case
has received full consideration, that petitioner will not prevail.” Id. at 338.
Further, in a death penalty case, doubts whether a COA should issue must be
resolved in petitioner’s favor. See Avila v. Quarterman, 560 F.3d 299, 304 (5th
Cir. 2009).
DISCUSSION
In his motion, Crawford seeks a COA on eighteen separate claims. The
court considers each in turn.
A. Whether Crawford’s statements were obtained in violation of the
Fifth, Sixth, and Fourteenth Amendments
Crawford asserts that he was denied his Sixth Amendment right to
counsel during the interviews conducted by the FBI. He also asserts that his
Sixth Amendment rights were violated by the state’s delay in providing him an
initial appearance.
In the district court, Crawford argued that his Sixth Amendment right to
have counsel present during the February 1 and February 2 interrogations was

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violated.1 He contended that his right to counsel attached on February 1, when
an arrest warrant, supported by a general affidavit, issued for capital murder.
He asserted that he was thereafter denied his right to counsel when
interrogations continued without a lawyer present. He further asserted that he
was denied a prompt initial appearance because he was not brought before a
magistrate until February 3, the day after he gave his last statement. The state
argued in the district court that Crawford’s Sixth Amendment right attached
when his initial appearance occurred or ought to have occurred.2 It further
argued that the delay in providing an initial appearance was not unreasonable
under the circumstances.
The district court rejected Crawford’s contention that his Sixth
Amendment right attached upon issuance of the arrest warrant, but made no
finding of when the right did in fact attach. Instead, the court ruled that even
if Crawford’s right to counsel had attached by the time of the February 1 and
February 2 interviews, he had not invoked that right but, to the contrary, had
made a knowing and voluntary waiver of it after being advised of his Miranda
rights.

1
Crawford also argued that his Fifth Amendment right to have counsel present during
the January 30 interrogation was violated. The district court held that this claim was barred
because of an independent and adequate state procedural rule and, alternatively, held that the
claim failed on its merits. See Crawford III, 2008 WL 4419347, at *12. In his brief on appeal,
Crawford offers no argument challenging the district court's primary or alternative resolutions
of the claim and therefore shows no entitlement to a COA on the Fifth Amendment claim.
2
The state’s response to Crawford in the district court seems to equate the federal right
to counsel under the Sixth Amendment with the right to counsel under the Mississippi
Constitution. However, Mississippi law is equivocal on whether this proposition is correct.
Compare Johnson v. State, 631 So. 2d 185, 187-88 (Miss. 1994) (“Under the Mississippi
Constitution, the right to counsel attaches once the proceedings reach the accusatory stage,
which is earlier in the day than does the federal right.” (quotations omitted)), with McGilberry
v. State, 741 So. 2d 894, 904 (Miss. 1999) (“The right to counsel, at both the federal and state
level, attaches at the point in time when the initial appearance . . . ought to have been held.”).

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It is “beyond doubt that the Sixth Amendment right to counsel may be
waived by a defendant, so long as relinquishment of the right is voluntary,
knowing, and intelligent.” Montejo v. Louisiana, 129 S. Ct. 2079, 2085 (2009).
When, as here, a defendant “is read his Miranda rights (which include the right
to have counsel present during interrogation) and agrees to waive those rights,”
such a waiver suffices to waive the Sixth Amendment right to counsel. Id; see
also Patterson v. Illinois, 487 U.S. 285, 296 (1988) (holding that an accused
advised of his Miranda rights “has been sufficiently apprised of the nature of his
Sixth Amendment rights”).
The district court found Crawford to have waived his right to counsel on
both February 1 and February 2. Crawford III, 2008 WL 4419347, at *13.
Crawford does not attack the district court’s determinations that he never
invoked his right to counsel and that he executed written waivers of that right.
Crawford has not made a substantial showing that his Sixth Amendment right
to counsel was denied.
Crawford also contends that the state’s delay in providing him an initial
appearance led to a deprivation of his Sixth Amendment right to counsel.
Crawford’s claim lacks merit. As mentioned, the law enforcement officials fully
informed Crawford of his right to counsel by giving Miranda warnings prior to
each interview. The Supreme Court has held that such warnings “sufficiently
apprise[]” a defendant “of the consequences of abandoning [his Sixth
Amendment] rights, so that his waiver on this basis will be considered a
knowing and intelligent one.” Patterson, 487 U.S. at 296. Moreover, the district
court found that Crawford confessed his involvement within an hour of his
arrest. It found “no evidence of a causal connection between the asserted delay
and Petitioner’s confession.” Crawford III, 2008 WL 4419347, at *13.3 “Where

3
The district court made no finding whether the February 3 hearing was sufficiently
prompt under federal law.

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there is no evidence to support a finding that the delay was for the purpose of
obtaining a confession, there is no evidence that the delay had a coercive effect
on the confession, there is no causal connection between the delay and the
confession, and the confession was otherwise voluntarily given . . . the defendant
has not shown prejudice by the delay.” United States v. Mullin, 178 F.3d 334,
342 (5th Cir. 1999) (quotation and alteration omitted) (omission in original).
The request for COA on this claim is denied.
B. Whether Crawford’s statements were inadmissible “fruit of the
poisonous tree” because his arrest for Ray’s murder was not
supported by probable cause
Crawford contends that the statements he gave during his interviews with
the FBI, as well as during his psychiatric evaluation, should not have been
admitted at trial because there was no probable cause for his initial arrest. He
did not present this claim to the state courts either on direct appeal or in his
state post-conviction application. His failure to exhaust available remedies at
the state level precludes relief on this claim at the federal level, absent a
showing of cause for the default and actual prejudice. See Martinez v. Johnson,
255 F.3d 229, 238-39 (5th Cir. 2001). Because Crawford offers no argument
demonstrating cause and prejudice for his failure raise the claim in state court,
a COA is denied.
C. Whether Crawford was subjected to a psychiatric evaluation of his
competency to stand trial without the benefit of counsel in
violation of the Sixth Amendment
Pursuant to a state court order dated February 1, 1993, Crawford was
evaluated by psychiatric personnel at the Mississippi State Hospital to
determine whether he was “competent and sane” to proceed to trial on the
unrelated assault and rape charges, which was scheduled for February 2. The
order, which was made part of the assault and rape case’s docket, was approved

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and signed by William Fortier, Crawford’s counsel in that case, as “Attorney for
Defendant.” Although the exact time is not clear from the record, the evaluation
occurred no later than February 2, 1993.
During Crawford’s murder trial, information contained in the psychiatric
evaluation was apparently used to discredit his insanity defense. The evaluation
stated, under a section headed “Knowledge of the Court”: “[Crawford]
understands that he may be indicted for capital murder in the most recent
alleged offenses and understands how a capital and non-capital trial would
differ.” In the “Knowledge of the Alleged Offenses” section, the report details
Crawford’s reported state of mind prior to and during Ray’s murder. And in the
“Forensic Opinions” section, the evaluation states that Crawford was not
suffering from a mental disorder which prevented him from knowing right from
wrong “at the time of the alleged offenses,” although it is not clear whether these
“offenses” include Ray’s murder.
Crawford argues that he was subjected to a psychiatric evaluation without
the benefit of counsel, in violation of the Sixth Amendment.4 To the extent
Crawford argues that he was entitled to have an attorney present during the
examination, his claim lacks merit. He cites no authority for such a proposition
and, moreover, the Supreme Court has declined to recognize such a right under
the Sixth Amendment. See Estelle v. Smith, 451 U.S. 454, 470 n.14 (1981)
[hereinafter Smith]; United States v. Byers, 740 F.2d 1104, 1119 & n.16 (D.C.
Cir. 1984) (noting the Supreme Court’s disavowal of any Sixth Amendment right
to have counsel present during a psychiatric examination).
To the extent Crawford argues that he should have had the benefit of
counsel in deciding whether to undergo a psychiatric evaluation, however, his

4
Crawford does not challenge the district court’s determination that he was notified
of his rights under the Fifth Amendment by the examining psychiatrist, Dr. W. Criss Lott.
See Crawford III, 2008 WL 4419347, at *13.

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claim is colorable. Fortier, Crawford’s counsel on the unrelated rape and assault
charges, approved the examination. In light of the fact that Crawford’s rape and
assault counsel approved the examination, that Crawford was advised of his
Miranda rights by the examining physicians, and that he presented an insanity
defense in the rape and assault trial, the use of the evaluation during that trial
would not have offended Crawford’s Fifth or Sixth Amendment rights.
Crawford’s contention, however, is that the psychiatric evaluation, ostensibly
performed for the purpose of determining competency in the rape trial, was
improperly used against him in the murder trial.
A series of Supreme Court decisions, dating from Smith to Penry v.
Johnson, 532 U.S. 782 (2001), provides guidance in this area. As a starting
point, in Smith, the Court held that a defendant has a Sixth Amendment right
to counsel’s assistance “in making the significant decision of whether to submit
to the [psychiatric] examination and to what end the psychiatrist’s findings could
be employed.” 451 U.S. at 470-71; id. at 471 (“[A] defendant should not be forced
to resolve such an important issue without ‘the guiding hand of counsel.’”
(quoting Powell v. Alabama, 287 U.S. 45, 69 (1932))). In 2004, the Third Circuit
provided this concise summary of the law:
A compelled psychiatric interview implicates Fifth and
Sixth Amendment rights ( Smith ). Before submitting
to that examination, the defendant must receive
Miranda warnings and (once the Sixth Amendment
attaches) counsel must be notified ( Smith ). The
warnings must advise the defendant of the
“consequences of foregoing” his right to remain silent
( Smith ). The Fifth and Sixth Amendments do not
necessarily attach, however, when the defendant
himself initiates the psychiatric examination
( Buchanan,5 Penry ). Similarly, the Fifth — but not
Sixth — Amendment right can be waived when the

5
Buchanan v. Kentucky, 483 U.S. 402 (1987).

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defendant initiates a trial defense of mental incapacity
or disturbance, even though the defendant had not been
given Miranda warnings ( Buchanan, Powell 6 ). But
that waiver is not limitless; it only allows the
prosecution to use the interview to provide rebuttal to
the psychiatric defense ( Buchanan, Powell ). Finally,
the state has no obligation to warn about possible uses
of the interview that cannot be foreseen because of
future events, such as uncommitted crimes ( Penry ).

Gibbs v. Frank, 387 F.3d 268, 274 (3d Cir. 2004).
In Penry v. Johnson, the defendant Penry committed a capital crime in
1979. Previously, in 1977, a psychiatric evaluation of Penry had been prepared
for an unrelated case. 532 U.S. at 786, 793. That 1977 report was admitted into
evidence in the capital trial. Penry argued that its use infringed his Fifth
Amendment right against self-incrimination. Id. at 793. Although it decided the
question against Penry on AEDPA standard-of-review grounds without reaching
the merits of his Fifth Amendment claim, the Court noted, inter alia, that the
defendant had affirmatively put his mental state at issue and that the 1979
crime had not been committed when the 1977 examination took place. Id. at
794. The Court observed that “[t]he differences between this case and [Smith]
are substantial.” Id. at 795.
Although the Penry Court viewed the issue through a Fifth Amendment
rather than Sixth Amendment lens, its reasoning is instructive in this case.
Here, Crawford was without a lawyer in the murder case and thus had no legal
counsel to advise him about whether to submit to the examination, which could
have prejudiced (and allegedly did prejudice) his murder defense. Unlike Penry,
Crawford had already committed the Ray murder and intended to present an
insanity defense in the assault trial. It was therefore foreseeable that his

6
Powell v. Texas, 492 U.S. 680 (1989).

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mental state could be placed at issue during any ensuing capital murder trial.
Under Smith, Crawford may have had a right to a lawyer’s advice “in making
the significant decision of whether to submit to the examination and to what end
the psychiatrist’s findings could be employed.” Smith, 451 U.S. at 471 (emphasis
added).
The Mississippi Supreme Court, on collateral review, concluded that “it is
apparent that [Fortier], at the very least, had notice of the fact that the
examination would take place as he signed off on the examination order.” 867
So. 2d at 205. The district court similarly concluded that “the court’s order
notified Mr. Fortier of the purpose and scope of the examination sufficient to
satisfy the Sixth Amendment.” 2008 WL 4419347, at *13. Fortier’s approval
likely satisfied any Sixth Amendment concerns in the rape and assault case, but
whether it afforded Crawford adequate protection in the murder case is a
distinct inquiry that should be treated separately. This court concludes that
“jurists of reason could disagree with the district court’s resolution of [this]
constitutional claim[]” and grants a COA. Miller-El, 537 U.S. at 327.
Although the district court touched upon the merits of this claim, the
present state of the record counsels in favor of remanding to that court for
further consideration after additional briefing. The relevance of Fortier’s
participation to Crawford’s Sixth Amendment claim was not adequately briefed.
Further, the effect of Crawford’s waiver of his Sixth Amendment right to
counsel, discussed supra, and whether that waiver would extend to any decision
to submit to a psychiatric evaluation were issues not adequately explored by the
briefs. Should the district court be so inclined, it may develop the record on the
timing of Crawford’s representation in the two criminal proceedings; it may also
conduct an evidentiary hearing to assist its resolution of this claim. See, e.g.,
United States v. Herrera, 412 F.3d 577, 582 (5th Cir. 2005).

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D. Whether Crawford's statements were obtained through the use of
confidential medical records that were procured without a
warrant or consent
The day prior to Crawford’s arrest, FBI Agent Newsom Summerlin
obtained his mental health records from William Fortier’s law clerk, without
Crawford’s consent. These documents, which were not made part of the record
in the state court or the district court, appear to have been evaluations prepared
in anticipation of Crawford’s rape trial. Crawford contends that law
enforcement officials unlawfully obtained these records and used the information
they contained to extract a confession. He argues that the confession, which was
admitted at trial, was inadmissible “fruit of the poisonous tree.” See Wong Sun
v. United States, 371 U.S. 471, 487-88 (1963).
Crawford is unable to show any illegality in the release of the records to
the FBI. He asserts that their disclosure was a violation of the attorney-client
privilege. However, both the state court and the district court found that the
records were disclosed in an attempt to prevent the commission of a crime,
which, in 1993, was an exception to the attorney-client privilege.7 See M ISS.
R ULES OF P ROF’L C ONDUCT 1.6(b)(1) (1993). Moreover, neither court had the
mental health records before it to make the determination whether the records
were privileged in the first instance. Thus, neither court found that a violation
of the Mississippi evidence rules had occurred.
Further, even if they were illegally obtained, the causal connection
between the records and the confession is weak. The confession must be
excluded only if, “granting establishment of the primary illegality, the evidence
to which instant objection is made has been come at by exploitation of that

7
The Mississippi rules have since been amended to exempt only those disclosures
believed necessary to prevent “reasonably certain death or substantial bodily harm.” MISS .
RULES OF PROF ’L COND UCT 1.6(b)(1) (2009).

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illegality or instead by means sufficiently distinguishable to be purged of the
primary taint.” Wong Sun, 371 U.S. at 488 (quotation omitted). Crawford
merely alleges that his interlocutor, FBI Agent Joe Jackson, had read the
records and consulted with a behavioral science expert prior to the arrest. This
is an insufficient causal connection to justify the exclusion urged. A COA on this
claim is denied.
E. Whether the trial court denied Crawford his Sixth Amendment
right to an impartial jury by sustaining objections to questioning
during voir dire
During voir dire at Crawford’s murder trial, the trial judge sustained the
state’s objections to certain questions by James Pannell, Crawford’s counsel,8
which sought to elicit prospective jurors’ views on the death penalty under
particular circumstances. Pannell was prevented from obtaining jurors’ views
on whether the death penalty ought to be automatic if a crime was committed
during a kidnapping or a sexual assault and whether they would consider
specific mitigating factors. Pannell was, however, permitted to ask, “Is there
any one here that believes that the death penalty ought to be automatic of [sic]
someone is found guilty of capital murder.” Crawford argues that his due
process rights were violated under Morgan v. Illinois, 504 U.S. 719 (1992), which
held that a capital defendant “must be permitted on voir dire to ascertain
whether his prospective jurors” would “impose death regardless of the facts and
circumstances of conviction.” Id. at 735-36.
“This circuit has previously stated that Morgan only involves the narrow
question of whether, in a capital case, jurors must be asked whether they would
automatically impose the death penalty upon conviction of the defendant.”
Trevino v. Johnson, 168 F.3d 173, 183 (5th Cir. 1999) (quotation omitted).

8
During trial, Pannell was assisted by David Bell.

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Crawford concedes that this question (automatic death) was posed to the venire
by his counsel. Moreover, the trial judge also posed this question to the venire
and two jurors were removed for cause based on their affirmative responses.
Further, the trial judge asked the venire whether they would consider any
mitigating evidence against imposition of the death penalty. The trial judge
sustained the state’s objection to Pannell’s attempt to elicit jurors’ views on
specific mitigating factors. The Trevino court considered a similar claim
regarding questioning on a specific mitigating factor and ruled that Morgan in
no way requires the trial court to permit such questioning. 168 F.3d at 183.
On direct appeal, the Mississippi Supreme Court ruled that “the trial
judge conducted sufficient questioning, and combined with the individual
examination of jurors, voir dire of the venire was sufficient as to whether anyone
would automatically vote to impose death.” Crawford I, 716 So. 2d at 1043. The
district court agreed and denied relief on this claim. Crawford has not made the
requisite showing of a denial of a constitutional right, and his request for a COA
on this claim is denied.
F. Whether the “especially heinous, atrocious or cruel” jury
instruction was unconstitutionally vague
Following the guilty verdict, the trial entered the sentencing phase. In
deciding whether to impose the death penalty, Crawford’s jury was instructed
to consider the potential existence of three aggravating factors. The third of
these was that “[t]he capital offense was especially heinous, atrocious or cruel.”
This factor was further defined as follows:
The court instructs the jury that in considering
whether the capital offense was especially heinous,
atrocious or cruel; heinous means extremely wicked or
shockingly evil; atrocious means outrageously wicked
and vile; and cruel means designed to inflict a high
degree of pain with indifference to or even enjoyment of
the suffering of others.

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An especially heinous, atrocious or cruel capital
offense is one accompanied by such additional acts as to
set the crime apart from the norm of capital murders —
the conscienceless or pitiless crime which is
unnecessarily torturous to the victim.
If you find from the evidence beyond a reasonable
doubt that the defendant utilized a method of killing
which caused serious mutilation, that there was
dismemberment of the body prior to death, that the
defendant inflicted physical or mental pain before
death, that there was mental torture and aggravation
before death, or that a lingering or torturous death was
suffered by the victim, then you may find this
aggravating circumstance.

Crawford argues that this instruction failed to adequately narrow the kinds of
killings which may warrant the death penalty. He contends that Maynard v.
Cartwright, 486 U.S. 356 (1988), and Shell v. Mississippi, 498 U.S. 1 (1990) (per
curiam), invalidated similar instructions and that accordingly his death sentence
should be reversed.
The district court noted that multiple Supreme Court decisions had
approved language similar to that employed in the instruction given. In Profitt
v. Florida, for instance, the Court considered a narrowing construction of the
same aggravating factor, which limited its application to “the conscienceless or
pitiless crime which is unnecessarily torturous to the victim.” 428 U.S. 242, 255
(1976) (quotation omitted). The Court concluded that the construction did not
“provide[] inadequate guidance to those charged with the duty of recommending
or imposing sentences in capital cases.” Id. at 256; see also Bell v. Cone, 543 U.S.
447, 457-58 (2005) (rejecting a vagueness challenge to the state court’s
narrowing construction of the same aggravating factor).
Crawford cites Justice Marshall’s concurring opinion in Shell v.
Mississippi, which stated that an attempt to define “especially heinous, atrocious

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or cruel” using some of the language employed by the trial court in this case
would not pass constitutional muster. 498 U.S. at 2-3 (Marshall, J.,
concurring).9 However, Crawford ignores the trial court’s further narrowing of
the aggravating factor to “the conscienceless or pitiless crime which is
unnecessarily torturous to the victim,” as mentioned above. This additional
limiting construction of the aggravating factor cured any alleged vagueness or
overbreadth, and Crawford cites no authority to the contrary. No COA shall
issue on this claim.10
G. Whether the jury instructions failed to make clear that unanimity
was not required in order for individual jurors to consider
mitigating evidence
Crawford contends that based on the phrasing of the sentencing
instructions, there was a substantial probability that individual jurors believed
they could not consider mitigating evidence unless all twelve jurors agreed that
a particular mitigating factor applied. In Mills v. Maryland, the Supreme Court
held that “the sentencer must be permitted to consider all mitigating evidence.
The possibility that a single juror could block such consideration, and
consequently require the jury to impose the death penalty, is one we dare not
risk.” 486 U.S. 367, 384 (1988).
The instructions nowhere stated that unanimity was required with respect
to the jury’s consideration of mitigating factors. They referred to a unanimity

9
The instruction in Shell stated: “[T]he word heinous means extremely wicked or
shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to
inflict a high degree of pain with indifference to, or even enjoyment of[,] the suffering of
others.” 498 U.S. at 2 (Marshall, J., concurring) (alterations in original) (quotation omitted).
10
Crawford’s brief asserts in passing that the death in this case did not meet the trial
court’s definition of “especially heinous, atrocious or cruel.” To the extent this contention is
premised on an alleged lack of evidence to support the jury’s finding of this aggravating factor,
the argument is not developed in Crawford’s brief and, considering the nature of the killing,
does not merit a COA in any event.

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requirement only with respect to aggravating factors. Crawford does not identify
any specific instruction which even reasonably suggests a unanimity
requirement for mitigating circumstances. Instead, he argues that the jury was
never instructed that unanimity was not required for any particular mitigating
factor before it could consider such evidence.
In Stringer v. Jackson, this court rejected a similar argument even when
the instructions did, as an “oversight,” require unanimity for mitigating
circumstances. 862 F.2d 1108, 1112 (5th Cir. 1988), modified on other grounds
by Stringer v. Black, 979 F.2d 38 (5th Cir. 1992). The court held that “a reading
of the entire charge would not have led the jurors to think they were compelled
to ignore mitigating circumstances (unless found unanimously) in determining
an appropriate sentence.” Id. (emphasis added).
In this case, as the district court concluded, the jury instructions, read as
a whole, do not require juror unanimity to consider mitigating circumstances.
Consequently, a COA is denied on this claim.
H. Whether a jury instruction impermissibly shifted the burden of
proof to Crawford by failing to require the jury to find that
aggravating circumstances outweighed mitigating circumstances
beyond a reasonable doubt
Crawford next challenges the following jury instruction:
In the event that you find that the mitigating
circumstance(s) do not outweigh or overcome the
aggravating circumstance(s), you may impose the death
sentence. Should you find that the mitigating
circumstance(s) outweigh or overcome the aggravating
circumstance(s), you shall not impose the death
sentence.

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Crawford argues that under Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Ring v. Arizona, 536 U.S. 584 (2002),11 this instruction was erroneous. First, he
contends that the jury was not instructed to find that aggravating circumstances
outweighed mitigating circumstances. Later in his brief, he argues that the
instruction omitted a reasonable doubt requirement from any potential jury
finding that mitigating circumstances did not outweigh aggravating
circumstances. His arguments on both fronts are foreclosed.
Crawford points to no authority which mandates that a jury make an
affirmative finding that aggravating factors outweigh mitigating factors beyond
a reasonable doubt. Instead, the cases he cites hold that “the Sixth Amendment
requires that [aggravating factors] be found by a jury.” Ring, 536 U.S. at 609
(emphasis added). Moreover, as the district court noted, Kansas v. Marsh
confirmed “that a state death penalty statute may place the burden on the
defendant to prove that mitigating circumstances outweigh aggravating
circumstances.” 548 U.S. 163, 173 (2006) (emphasis added). It follows that a
state court’s failure to instruct the jury that it must find that aggravating
circumstances outweigh mitigating circumstances beyond a reasonable doubt
does not run afoul of the Sixth Amendment. A COA on this claim is denied.
I. Whether the use of kidnapping as both an element of capital
murder and an aggravating circumstance violated Crawford’s
Eighth Amendment rights

11
A criminal defendant is “indisputably entitle[d] . . . to ‘a jury determination that [he]
is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’”
Apprendi, 530 U.S. at 477 (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)). In
Ring, the Supreme Court overruled that portion of Walton v. Arizona, 497 U.S. 639 (1990),
that “allow[ed] a sentencing judge, sitting without a jury, to find an aggravating circumstance
necessary for imposition of the death penalty.” 536 U.S. at 609. Instead, the Court concluded,
the Sixth Amendment right to trial by jury applied to “the factfinding necessary to put [a
defendant] to death.” Id.

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As a prerequisite to Crawford’s capital murder conviction, the jury found
during its guilt deliberations that Ray’s murder occurred during the course of a
kidnapping. See M ISS. C ODE A NN. § 97-3-19(2)(e) (1992). During the sentencing
deliberations, the jury also found, as an aggravating circumstance, that the
killing was committed during the course of a kidnapping. Crawford contends
that duplicating an element of the offense as an aggravating circumstance
violates the Eighth Amendment.
In Lowenfield v. Phelps, the Supreme Court held that a state capital
sentencing scheme may narrow the category of death-eligible defendants in
either of two ways. 484 U.S. 231, 246 (1988). “The legislature may itself narrow
the definition of capital offenses . . . so that the jury finding of guilt responds to
this concern, or the legislature may more broadly define capital offenses and
provide for narrowing by jury findings of aggravating circumstances at the
penalty phase.” Id.12 Elaborating on Lowenfield in Tuilaepa v. California, the
Court stated: “To render a defendant eligible for the death penalty in a homicide
case, we have indicated that the trier of fact must convict the defendant of
murder and find one ‘aggravating circumstance’ (or its equivalent) at either the
guilt or penalty phase.” 512 U.S. 967, 971-72 (1994). “The aggravating
circumstance may be contained in the definition of the crime or in a separate
sentencing factor (or in both).” Id. at 972.

12
Crawford’s attempt to distinguish the Louisiana statutory framework from the
Mississippi framework is unavailing. He contends that, unlike Louisiana, Mississippi does
not narrow the class of death-eligible defendants at the guilt phase. This contention is
contradicted by MISS . CODE ANN . § 97-3-19 (1992), which distinguishes capital murder from
noncapital murder. Sections 97-3-19(2)(a)-(g) set forth the specific circumstances in which a
defendant may be convicted of capital murder.
Crawford further contends that all defendants charged with felony murder are eligible
for the death penalty in Mississippi. This contention is flatly contradicted by MISS . CODE ANN .
§ 97-3-19(1)(c), which designates as murder (as opposed to capital murder) any homicide “by
any person engaged in the commission of any felony other than” certain enumerated felonies.

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Here, the kidnapping element, as a requisite element of a capital murder
conviction, was used to render Crawford eligible for a death sentence in the guilt
phase. It was then found as an aggravating factor during the sentencing phase
to support the jury’s actual imposition of the death penalty. This kind of scheme
was approved by the Tuilaepa Court and is not constitutionally invalid. A COA
shall not issue on this claim.
J. Whether the state’s failure to disclose an FBI report until after
Crawford’s trial amounted to a Brady violation
After his murder trial, Crawford’s counsel obtained an FBI report through
a Freedom of Information Act request. Crawford contends that the state’s
failure to produce this report, which was created in February 1993, prior to the
trial, was a violation of Brady v. Maryland, 373 U.S. 83 (1963).13 According to
Crawford, the report had impeachment value and would have supported his
theory that he did not lead the search to the body. Had the report been
produced, he argues, the jury would have believed his claim that he had no
memory of the murder and imposed a life sentence rather than death.
At trial, the defense’s theory was that the FBI agents led Crawford to the
body, with the assistance of a specialized search aircraft. The state, meanwhile,
presented testimony that Crawford led the search effort, with the aircraft merely
assisting the searchers to position themselves relative to a nearby landmark.
FBI Agent Jackson testified at trial: “We could not have found [Ray’s body] in my
opinion even with the technical expertise that we had there with the very special
equipment that came from Washington. We could not have found her in the time

13
Under Brady, “the suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. The
Brady rule extends to impeachment evidence, in addition to exculpatory evidence. United
States v. Bagley, 473 U.S. 667, 676 (1985).

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that was done without [Crawford’s] assistance.” Meanwhile, the FBI report
stated: “[REDACTED] was utilized and was extremely beneficial in guiding the
search team to the victim’s body. In fact, it was quite possible victim might not
have been located that evening without the use of [REDACTED].” 14
The state court concluded that the FBI report had “little impeachment
value, much less the material value required for the grant of a new trial.”
Crawford II, 867 So. 2d at 204. Similarly, the district court found that
“Jackson’s trial testimony is not in conflict with the F.B.I. report, and the report
contains no exculpatory or impeachment evidence.” Crawford III, 2008 WL
4419347 at *32. The state defends this ruling, arguing that there is no
contradiction between the statement in the report and Jackson’s testimony.
The report and testimony do not contradict one another. Most important,
the report states that “it was quite possible” that Ray’s body would not have been
found “that evening” without the help of the aircraft. This statement amounts
to a possibility that the body could have gone unlocated that evening, rather
than a categorical assertion. Meanwhile, Jackson’s testimony acknowledged the
“aircraft assistance” and “the technical expertise . . . with the very special
equipment.” Defense counsel did not probe the nature of this assistance on
cross-examination.
Moreover, Crawford makes an unconvincing argument with respect to the
materiality requirement, i.e., that the result of the sentencing phase would have
been different had the FBI report been disclosed to the defense. See Bagley, 473
U.S. at 682. Considering the lack of contradiction between his testimony and the

14
Certain portions of the FBI report were apparently redacted pursuant to 5 U.S.C.
§ 552(b)(7)(E), which exempts records or information whose release to the public “would
disclose techniques and procedures for law enforcement investigations or prosecutions, or
would disclose guidelines for law enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the law.” No party disputes that these
redacted portions refer to the specialized search aircraft.

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report, Crawford has not shown a reasonable possibility that the jury would have
been persuaded that he could not recall the murder if the report had been
disclosed. A COA on this claim is denied.
K. Ineffective assistance of trial counsel
Crawford makes eight ineffective assistance claims against his trial
counsel. These claims are all governed by the framework established in
Strickland v. Washington, 466 U.S. 668 (1984). To prevail, Crawford must
establish: (1) “that counsel’s representation fell below an objective standard of
reasonableness”; and (2) “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 688, 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694.
(1) Whether trial counsel was ineffective for failing to develop a meaningful
attorney/client relationship
Crawford claims that his trial counsel, Pannell, was ineffective because he
did not establish a “relationship of trust” with his client. Crawford cites no
authority for the proposition that a criminal defendant is entitled to a
“meaningful” relationship with counsel or that the denial of such a relationship
amounts to ineffective assistance of counsel. Further, in Morris v. Slappy, the
Supreme Court explicitly “reject[ed] the claim that the Sixth Amendment
guarantees a ‘meaningful relationship’ between an accused and his counsel.”
461 U.S. 1, 14 (1983). No COA shall issue on this claim.
(2) Whether trial counsel was ineffective for failing to investigate critical
aspects of Crawford’s insanity defense
Crawford makes several allegations about the deficiencies of his expert
witnesses, arguing that his counsel failed to prepare them for trial. He contends
that his experts’ diagnoses were conflicting and further contends that those
experts were unfamiliar with the case as a result of his counsel’s failure to

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prepare them. Other than a conclusory assertion, however, Crawford fails to
show how his counsel is responsible for the alleged inadequacies of and conflicts
in his experts’ testimony.
In any event, the experts’ testimony was not deficient. During the guilt
phase and the sentencing phase, Dr. Stanley Russell testified that Crawford
suffered from psychogenic amnesia. During the sentencing phase, Dr. Martin
Webb testified that Crawford suffered from manic depressive illness. Webb
admitted that his diagnosis differed from Russell’s, but did not characterize
Russell’s diagnosis as incorrect. Russell, meanwhile, acknowledged his
disagreement with Webb’s diagnosis but noted that it “is not unusual for
psychiatrist[s] to disagree.” As the district court noted, the defense’s purpose at
the sentencing phase was to present mitigating evidence, rather than to
establish an insanity defense. Presenting evidence of two alleged mental
illnesses afflicting Crawford did not prejudice the case for mitigation.
Crawford further argues that counsel’s failure to prepare the experts left
them unfamiliar with the facts of the case and constituted ineffective assistance
of counsel. He points to Russell’s inability to recall specific facts surrounding the
killing as support. However, Russell stated that any information that he had not
considered was irrelevant to his psychogenic amnesia diagnosis. Crawford also
argues that Webb had not read the FBI reports, but fails to explain how this fact
prejudiced his mitigation case such that the result would have been different if
Webb had read those reports.
Finally, Crawford makes no persuasive argument concerning Strickland’s
prejudice prong. A COA is denied on this claim.

23
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(3) Whether trial counsel was ineffective for failing to seek a competency
evaluation prior to trial
Crawford alleges that his counsel was ineffective for failing to request a
competency hearing prior to trial. 15 The basis for Crawford’s claim is the
affidavit of Dr. Lemly Hutt, dated May 17, 1993, which opines that he was
probably incompetent to stand trial.
In the unrelated rape and assault case, Hutt examined Crawford on an
ongoing basis prior to February 1993 for his competency to stand trial on those
charges. During that time, Hutt found Crawford competent. On May 2, 1993,
Crawford suffered a seizure while incarcerated. As a result, Crawford was
prescribed and began taking Dilantin, an antiepileptic/antiseizure drug. In
Hutt’s opinion, excess Dilantin caused grogginess and incoherence, which
counsel had observed in Crawford. Reducing the Dilantin dose, meanwhile,
posed the risk of future seizures.
Hutt did not have the opportunity to reexamine or observe Crawford
following the seizure. Hutt nevertheless opined that “there is a probability that
he is currently incompetent to stand trial.” He noted that he was “unable to
assess [Crawford’s] competency to stand trial with certainty” without an
opportunity to reexamine Crawford and review test results.
The district court agreed with the state court’s determination that defense
counsel was deficient for failing to seek a competency determination. However,
the district court upheld the state court’s ruling that Crawford suffered no
prejudice as a result and that, therefore, there was no ineffective assistance of
counsel. Although counsel may have been deficient in failing to seek a
competency determination, there is no evidence of resulting Strickland

15
Crawford’s brief also alleges that “counsel was ineffective for failing to litigate the
issues surrounding Petitioner’s competency to stand trial.” Crawford’s brief is unclear about
what“issues,” other than whether to request a hearing, were handled ineffectively.

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prejudice. Critically, Crawford musters no evidence that he was actually
incompetent to stand trial due to the effect of his Dilantin medication. Further,
Russell, the defense’s expert, expressly testified that Crawford was competent
to stand trial. Crawford offers nothing to disturb the district court’s and state
court’s view of the evidence that he was competent to stand trial. Absent such
a showing, Crawford is unable to meet Strickland’s prejudice prong. A COA is
denied on this claim.
(4) Whether trial counsel was ineffective for conceding Crawford’s guilt during
his opening statement
During his opening statement, Pannell told the jury about the “escalating
nature of [Crawford’s] problems” and “his level of violence directed at women.”
Crawford contends that these statements amounted to a concession of guilt
without his approval, which constitutes ineffective assistance of counsel. As the
district court determined, however, counsel may have conceded that Crawford
committed certain acts and had certain tendencies, but persisted in arguing that
he was not guilty by reason of insanity. Crawford provides no authority for his
position that mentioning a client’s mental state or admitting that he committed
certain acts amounts to a concession of guilt when counsel is presenting an
insanity defense. A COA is denied on this claim.
(5) Whether trial counsel was ineffective for introducing prejudicial evidence
of a ransom note during presentation of Crawford’s case
During Crawford’s case-in-chief, Pannell called Crawford’s former counsel,
William Fortier, to explain why he had turned over Crawford’s medical records
to the FBI. Pannell was attempting to show that those medical records were
obtained under false pretenses. On cross-examination, Fortier discussed a
ransom note found in the attic of Crawford’s family home. Crawford contends
that by introducing this line of questioning, Pannell sabotaged his insanity
defense by opening the door to evidence of premeditation in the form of the

25
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ransom note. He further argues that the disclosure of the ransom note negated
Dr. Russell’s testimony regarding Crawford’s psychogenic amnesia.
The ransom note evidence was made admissible under state law because
Crawford mounted an insanity defense. See McLeod v. State, 317 So. 2d 389, 391
(Miss. 1975) (“When the defense is insanity, either general or partial, the door
is thrown wide open for the admission of evidence of every act in the accused’s
life relevant to the issue of insanity and is admissible in evidence. The trial
court is to be liberal in allowing the introduction of evidence or examination of
witnesses which tends to show the insanity or sanity of the accused.”). Crawford
does not make a credible argument that the ransom note was introduced solely
because Pannell threw open the door by questioning Fortier about disclosing
Crawford’s medical records. The note, as premeditation evidence, was already
admissible on the basis of Crawford’s affirmative defense. A COA is denied on
this claim.
(6) Whether trial counsel was ineffective for presenting an inadequate closing
argument following the guilt phase
During his closing argument, Pannell told the jury, inter alia, that “there
is no woman that is safe because that’s where [Crawford’s] rage is directed” and
that “everybody is in danger.” As with counsel’s opening statement, Crawford
contends that this amounted to an admission of guilt without his approval,
which constitutes ineffective assistance of counsel. Although counsel may have
admitted the commission of certain acts and even conceded that Crawford posed
certain dangers, these arguments were intended to support the insanity defense.
No COA shall issue on this claim.
(7) Whether trial counsel was ineffective for failing to investigate and present
significant mitigating evidence
Crawford asserts that counsel failed to investigate and present certain
mitigating evidence during the sentencing phase of the trial. He claims that

26
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counsel failed to investigate and present evidence of his “emotional and mental
disturbances, physical and mental abuse, adaptation to prison conditions,
remorse, and substance abuse,” and that these omissions may have affected the
jury’s decision to impose a death sentence. He points to pretrial correspondence
from Deirdre Enright, an attorney at the Capital Defense Resource Center, to
Pannell, Webb, and Enright’s colleague Jim Craig. Enright apparently
conducted interviews with family members and associates of Crawford and
constructed a written narrative centered upon his emotional and mental
disturbances.
In Wiggins v. Smith, the Supreme Court set forth the standard for
evaluating a trial attorney’s investigation into mitigating evidence. 539 U.S.
510, 522-23 (2003). “[W]e focus on whether the investigation supporting
counsel’s decision not to introduce mitigating evidence of [the defendant’s]
background was itself reasonable. In assessing counsel’s investigation, we must
conduct an objective review of their performance, measured for ‘reasonableness
under prevailing professional norms,’ which includes a context-dependent
consideration of the challenged conduct as seen ‘from counsel’s perspective at the
time.’” Id. at 523 (citations omitted) (quoting Strickland, 466 U.S. at 688, 689).
On collateral review, the Mississippi Supreme Court found that Crawford
did not allege the existence of any evidence that was outside of counsel’s
knowledge. In other words, Crawford presented nothing which would impugn
the sufficiency of Pannell’s investigation. The state court therefore concluded
that there was no basis to even analyze whether counsel had conducted an
adequate investigation. Crawford II, 867 So. 2d at 218. In his brief to this court,
Crawford concedes that the results of Enright’s interviews were provided to

27
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Pannell and does not otherwise highlight any evidence that Pannell failed to
discover.16 He has not shown that Pannell’s investigation was deficient.
Crawford also claims that Pannell failed to present certain mitigating
evidence. As discussed, the state court, lacking evidence to the contrary,
presumed that Pannell’s investigation was a complete one. It accordingly
treated his decisions about which evidence to present as within the ambit of trial
strategy and therefore entitled to “great deference.” Crawford II, 867 So. 2d at
218. Meanwhile, the district court found that the jury had the benefit of
testimony concerning Crawford’s evaluations at various mental health facilities,
unstable upbringing, night terrors, memory lapses, mood swings, headaches,
fear of the dark, and unusual behavior coloring photos of women’s faces. The
district court then determined that Crawford had not substantiated his
remaining allegations of adaptation to prison conditions, remorse, physical
abuse, or organic brain damage. Crawford III, 2008 WL 4419347, at *50.
In Strickland, the Supreme Court held that “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” 466 U.S. at 690-91; see also
Taylor v. Maggio, 727 F.2d 341, 347-48 (5th Cir. 1984) (“[T]he failure to present
a particular line of argument or evidence is presumed to have been the result of
strategic choice.”). The state court determined that counsel’s investigation was
a thorough one, and Crawford offers little to overcome the Strickland

16
Crawford cites the affidavit of Marion Ray Crawford, Charles Crawford’s father, who
stated that defense counsel “did not interview members of the family until the morning of . . .
trial.” Crawford, however, cites no authority for the proposition that Pannell needed to have
conducted in-person interviews, rather than rely on the reports of Enright. Assuming
arguendo that Pannell’s sole contact with family members was on the morning of trial, it does
not necessarily follow that he failed to discover mitigating evidence from them.

28
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presumption that Pannell’s decisions were “strategic choices.” Even when
counsel “might have done more to highlight particular portions of [a defendant’s]
social history in an effort to elicit more sympathy from the jury,” this court has
found such a performance “within the wide range of reasonable professional
assistance.” Ries v. Quarterman, 522 F.3d 517, 529 (5th Cir. 2008). Crawford
has not shown that trial counsel was deficient in failing to present certain
mitigating evidence. A COA is denied on this claim.
(8) Whether trial counsel was ineffective for failing to seek a continuance before
the sentencing phase
Finally, Crawford argues that counsel was ineffective in failing to secure
a limited continuance prior to the sentencing phase. He claims that counsel only
had ten minutes to prepare for the sentencing phase and was, by his own
admission, “exhausted.” Crawford contends that a continuance would have
enabled counsel to prepare more effectively for the sentencing phase.
A review of the record shows that Crawford conflates two different
moments from the trial. Following the return of the guilty verdict, counsel for
the state indicated that he needed ten minutes to prepare for the sentencing
phase. Crawford’s counsel voiced no objection to proceed to the sentencing phase
within that time frame. The record shows that counsel stated he was
“exhausted” following the sentencing phase testimony, not before it began. The
exhaustion comment was part of an argument to continue further proceedings,
including a jury charge conference and closing arguments, until the following
morning. The trial judge accepted this argument and, over the state’s objection,
adjourned until the following morning.
The record shows no reason for counsel to have sought a continuance prior
to the sentencing phase. To the extent Crawford claims counsel should have
done so due to exhaustion, he has misread the record. A COA is denied on this
claim.

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CONCLUSION
For the foregoing reasons, we GRANT Crawford a COA on his claim that
he was subjected to a psychiatric evaluation of his competency without the
benefit of counsel in violation of the Sixth Amendment. To permit the district
court an opportunity to develop the record, if necessary, and reconsider the
merits of Crawford’s claim, we VACATE that portion of its order denying relief
on this basis and REMAND for further proceedings. Crawford’s motion for a
COA is DENIED in all other respects.

30