UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 96-10027
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AARON LEE FULLER,
Petitioner - Appellant,
versus
GARY JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of Texas
May 30, 1997
Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Aaron Lee Fuller, sentenced to death for the robbery, murder,
and sexual assault of Loretta Stephens, appeals the district
court’s denial of his petition for writ of habeas corpus. We
affirm.
I
The contemptible facts of this death penalty case need not
detain us long. Most of the details are set forth in Fuller v.
State, 829 S.W.2d 191 (Tex. Crim. App. 1992) (en banc), cert.
denied 508 U.S. 941, 113 S. Ct. 2418, 124 L. Ed. 2d 640 (1993).
Loretta Stephens was beaten to death in her home during a theft,
then sexually assaulted and dumped in the tall weeds on the side of
Highway 87 north of Lamesa, Texas. During questioning by police,
petitioner Aaron Fuller offered several different accounts of his
involvement, some implicating one Juan Gomez. Fuller eventually
confessed to murdering and sexually assaulting Ms. Stephens by
himself, then disposing of the body without Gomez’s knowledge.
When it became clear at trial that the state was seeking the
death penalty, Fuller recanted his confession, seeking to implicate
Gomez once again. Fuller’s theory at trial was that Gomez beat Ms.
Stephens to death with a six-inch metal pipe while Fuller went
through her purse in another room. At the guilt/innocence phase of
trial, prosecutors refuted this theory with autopsy evidence from
Dr. Ralph Erdmann showing that Ms. Stephens’s injuries were more
consistent with blows from a fist than from a pipe. The State
introduced physical evidence from Ms. Stephens’s house tending to
show that Fuller committed both crimes. The jury found Fuller
guilty of capital murder.
At the punishment phase of the trial, the State introduced
evidence as to Fuller’s future dangerousness, including testimony
by psychiatrist James Grigson that Fuller would represent a
continuing threat to society. The State also introduced evidence
that Fuller belonged to the Aryan Brotherhood, a violent neo-nazi
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prison gang. The jury sentenced Fuller to death.
Different courts stayed Fuller’s execution while he exhausted
both direct appeals and state petitions for habeas corpus. He
petitioned the federal district court for habeas corpus relief
under 28 U.S.C. § 2254, and the district court denied his petition,
vacated its stay of execution, and denied a certificate of probable
cause.
Fuller now appeals, asserting five challenges to the
constitutionality of his death sentence: (1) the state introduced
false testimony regarding Ms. Stephens’s autopsy; (2) the state
introduced false testimony regarding future dangerousness; (3) the
state did not prove that Fuller was a member of, or shared beliefs
with, the Aryan Brotherhood prison gang, and therefore could not
inject evidence of the group’s beliefs into his murder trial; (4)
the state improperly excluded a juror based on her views about the
death penalty; and (5) the court wrongly refused his request for
state-sponsored expert assistance.
II
Thirteen days after Fuller filed his appellate brief, the
President signed into law the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”).
This new law modifies the statutes governing habeas corpus cases,
providing for a one-year statute of limitations, requiring a
“certificate of appealability” for circuit court review, and
limiting successive habeas petitions.
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The AEDPA amends 28 U.S.C. § 2253, which had imposed a
jurisdictional requirement that a federal court issue a certificate
of probable cause (“CPC”) before a circuit court heard a habeas
appeal. Section 2253, as amended, requires a district or circuit
court to grant a “certificate of appealability” (“COA”), which must
indicate which issues in a habeas appeal make a substantial showing
of the denial of a constitutional right. We interpret Fuller’s
request for a CPC as an application for COA. Drinkard v. Johnson,
97 F.3d 751, 756 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117
S. Ct. 1114, ___ L. Ed. 2d. ___ (1997). Accord: Herrera v. United
States, 96 F.3d 1010, 1012 (7th Cir. 1996); Reyes v. Keane, 90 F.3d
676, 680 (2d Cir. 1996).
We grant Fuller’s COA on four issues because he has made a
substantial showing of the denial of a constitutional right in
each. However, we deny COA on Fuller’s challenge to the district
court’s denial of state-sponsored expert assistance on his habeas
petition. We resolve doubts about whether to grant a COA in favor
of the petitioner, see Buxton v. Collins, 925 F.2d 816, 819 (5th
Cir.), cert. denied, 498 U.S. 1128, 111 S. Ct. 1095, 112 L. Ed. 2d
1197 (1991), and we may properly consider the severity of the
penalty in making this determination. See Barefoot v. Estelle, 463
U.S. 880, 893 n.4, 103 S. Ct. 3383, 3394 n.4, 77 L. Ed. 2d 1090
(1983); Buxton, 925 F.2d at 819. On the first four issues, Fuller
raises questions that are debatable among jurists of reason, and he
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has made an adequate showing to proceed further. Clark v. Collins,
956 F.2d 68, 71 (5th Cir.), cert. denied, 503 U.S. 901, 112 S. Ct.
1254, 117 L. Ed. 2d 485 (1992).
COA notwithstanding, the government argues that 28 U.S.C.
§ 2254(e)(2), as amended by AEDPA section 104, precludes our review
of most of Fuller’s first and second challenges. Amended
section 2254(e)(2) provides that:
If the applicant has failed to develop the factual basis
of a claim in State court proceedings, the court shall
not hold an evidentiary hearing on the claim unless the
applicant shows that))
(A) the claim relies on))
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have
been previously discovered through the exercise of
due diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the
applicant guilty of the underlying offense.
By its own terms, amended section 2254(e)(2) only curtails
evidentiary hearings, not appellate review of cases, and in any
event, the district court conducted an evidentiary hearing on these
issues more than three months before the President signed the AEDPA
into law. Therefore we find that the amended provision of
section 2254(e)(2) does not affect our review of the merits, to
which we now turn.
III
A
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Fuller first claims that coroner Ralph Erdmann failed to
perform the scientific procedures necessary to disprove Fuller’s
alternative theory that Gomez beat Ms. Stephens to death with a
pipe, and that Dr. Erdmann’s testimony was therefore fraudulent.
At trial Dr. Erdmann testified that the injuries Ms. Stephens
sustained were more consistent with infliction by fist than by
pipe. Fuller introduces for the first time on habeas appeal the
affidavit of Dr. Sparks Veasey, who claims that it is impossible to
make that determination without stripping the dura and brain matter
from the base of the skull to determine whether or not skull
fractures were present. Dr. Veasey also contends that, based on
photos of the autopsy, Dr. Erdmann did not strip the dura.
Dr. Erdmann also testified that he did not take a vaginal swab
of the deceased to detect or analyze any semen because, he said,
she had been dead too long to do a proper analysis. Dr. Erdmann
testified that after eight hours sperm becomes undetectable. Dr.
Veasey, however, testified in the evidentiary hearing that sperm
would have been detectable well after eight hours following death.
Fuller contends that Dr. Erdmann’s testimony on both counts is
false and misleading and that the State’s use of such false
testimony violates the Fifth, Eighth, and Fourteenth Amendments of
the Constitution.
To establish a due process violation based on the government’s
use of false or misleading testimony, the defendant must show (1)
that the witness’s testimony was actually false, (2) that the
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testimony was material, and (3) that the prosecution knew the
witness’s testimony was false. Giglio v. United States, 405 U.S.
150, 153-54, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972); May v.
Collins, 955 F.2d 299, 315 (5th Cir.), cert. denied, 504 U.S. 901,
112 S. Ct. 1925, 118 L. Ed. 2d 533 (1992). Fuller has failed to
meet this burden.
Fuller has not shown that Dr. Erdmann’s testimony about the
cause of death was actually false. Dr. Erdmann testified that the
bruises and cuts on the face of the deceased were more consistent
with blows from fists than with blows from a pipe. Fuller had an
opportunity at trial to challenge whether the autopsy provided
sufficient evidence to reach Dr. Erdmann’s conclusions, and he
failed to do so. To dispute Dr. Erdmann’s conclusion is not to
prove that it is “false.” Fuller has shown nothing about Dr.
Erdmann’s opinion to be actually false; he has only challenged the
methods by which Erdmann reached those conclusions. The proper
place for such a challenge is in cross-examination, not on
collateral review.
Dr. Erdmann’s statement at trial about the dissipation of
semen evidence after eight hours may or may not be false. Even if
Dr. Erdmann were incorrect, however, Fuller has not shown that Dr.
Erdmann could have acquired semen evidence when police recovered
Ms. Stephens’s body, approximately 100 hours after the assault took
place. So even if Dr. Erdmann were incorrect, Fuller has not shown
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that Dr. Erdmann could have found exculpatory evidence material to
his case. Additionally, Fuller has not demonstrated that the
prosecution knew of the alleged falsity of Dr. Erdmann’s claim
about semen evidence. Therefore, Fuller has failed to show that he
was denied a fair trial because of false and misleading testimony
by Dr. Erdmann.
Fuller also asserts fleetingly that the introduction of Dr.
Erdmann’s “materially inaccurate” evidence violates his Eighth
Amendment rights under Johnson v. Mississippi, 486 U.S. 578, 108 S.
Ct. 1981, 100 L. Ed. 2d 575 (1988). Because Fuller has not
adequately shown Dr. Erdmann’s testimony to be false or material,
Fuller’s Eighth Amendment claim must fail.
B
Fuller next claims that the testimony of psychiatrist Dr.
James P. Grigson regarding Fuller’s future dangerousness was
materially false, denying Fuller a fair trial under the Fifth,
Sixth, Eighth and Fourteenth Amendments. At the sentencing phase
of Fuller’s trial, Dr. Grigson testified for the prosecution that,
in his opinion, “there is absolutely no question, no doubt
whatsoever” that Fuller would be dangerous in the future.
Labeled “Doctor Death” by some in the press, Dr. Grigson has
been the target of media scrutiny. He has been profiled negatively
in Vanity Fair and The Washington Post. The American Psychiatric
Association has reprimanded him twice for his testimony, and it has
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filed an amicus curiae brief with the Supreme Court urging the
Court to prohibit his predictions because the association finds the
predictions unreliable. Fuller also points to academic criticism
of Dr. Grigson’s predictions, in particular an article co-written
by Dr. James Marquart in Law and Society Review.
Fuller claims that, because Dr. Grigson was aware of much of
this criticism, he lied to the court when he testified as to the
certainty of his predictions. Fuller also claims that the State
knew or should have known that Dr. Grigson was unreliable and that
his testimony as to the certainty of his predictions was false.
None of the criticism, by the media, scholars, or government
agents, shows that Dr. Grigson lied to the court in this case. The
defense could certainly use this outside criticism to impeach Dr.
Grigson, but the criticism goes to the sufficiency of the evidence,
a jury question, not the truth of his testimony. Fuller does not
claim that Dr. Grigson lied about his own opinion, and Dr. Grigson
never claimed at trial to be infallible. As we have already
stated, Giglio requires that, in order to establish a due process
violation for the government’s use of false or misleading
testimony, the defendant must show that the witness’s testimony is
actually false, material, and that the government knew the
testimony was false. Giglio, 405 U.S. at 153-54, 92 S. Ct. at 766.
Here, Fuller has failed to show that Dr. Grigson’s opinions about
future dangerousness, or about his own credibility, were actually
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false, and therefore Fuller’s due process claim fails.
C
Fuller contends that he was unconstitutionally prejudiced when
the state introduced, as evidence of his future dangerousness,
testimony that he was a member of the Aryan Brotherhood prison gang
as well as testimony about the gang and its beliefs. At trial, the
State introduced the testimony of one Royce Smithey, who testified
that the gang was a white supremacist, neo-nazi-type gang that
routinely dealt in violence, drug dealing, protection rackets,
prostitution, and fear. Fuller asserts that the prosecution failed
to show that he was a member of the gang or shared its beliefs.
Fuller also argues that in any event the use of this evidence as an
aggravating factor supporting the death penalty violated his First
Amendment rights of freedom of belief and association.
The issue in this case is not whether the Aryan Brotherhood
evidence was relevant to Fuller’s future dangerousness in the
sentencing phase, nor whether the evidence was more probative than
prejudicial. Those are not constitutional issues but evidentiary
issues, properly considered under the Texas Rules of Criminal
Evidence on direct appeal. The fact that irrelevant evidence may
have been admitted at trial does not rise to constitutional error.
Romano v. Oklahoma, 512 U.S. 1, ___, 114 S. Ct. 2004, 2011, 129 L.
Ed. 2d 1 (1994). The jurisdiction of this court on habeas review
of a state prosecution is limited to constitutional issues under 28
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U.S.C. § 2254(d)(1), as amended by the AEDPA.
The issue here is whether the State may use Fuller’s
constitutionally protected association as evidence of his future
dangerousness. In Dawson v. Delaware, the Supreme Court held that,
although the First Amendment protects an individual’s right to join
groups and associate with others, the Constitution does not erect
a per se barrier to the admission of evidence concerning beliefs
and associations at sentencing. Dawson, 503 U.S. 159, 161, 163,
112 S. Ct. 1093, 1096, 1097, 117 L. Ed. 2d 309 (1992). In that
case, the Court held that, where both parties stipulated to the
defendant’s membership in the Aryan Brotherhood prison gang, but
the prosecution offered no evidence of the gang’s violent
tendencies relevant to sentencing, the use of that associational
evidence violated the defendant’s First Amendment rights.
The Dawson court qualified its holding with an important
caveat, however:
Because the prosecution did not prove that the Aryan
Brotherhood had committed any unlawful or violent acts,
or had even endorsed such acts, the Aryan Brotherhood
evidence was also not relevant to help prove any
aggravating circumstance. In many cases, for example,
associational evidence might serve a legitimate purpose
in showing that a defendant represents a future danger to
society.
Id. at 166, 112 S. Ct. at 1098. Fuller’s case is distinguishable
from Dawson on exactly this point. The State in Fuller’s case did
not merely stipulate that Fuller was in the Aryan Brotherhood. It
introduced evidence that Fuller was a member of a gang that had
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committed unlawful or violent acts, including homicides, multiple
stabbings, drug dealing, and aggravated assaults. A reasonable
juror could conclude that membership in such a gang is relevant to
future dangerousness. Dawson established that a state may not
employ a defendant’s abstract beliefs at a sentencing hearing when
those beliefs are not relevant to the issue being tried. In this
case, however, Texas did not violate Fuller’s First Amendment
rights because it introduced relevant evidence of his future
dangerousness. The fact that Fuller was within his rights in
joining the gang does not bar the use of relevant evidence at
trial.
D
Fuller next asserts that the trial court improperly excluded
for cause a qualified venire member based on her views on capital
punishment. During voir dire, venire member Jonnie White
expressed reservations about imposing the death penalty unless the
defendant was a repeat offender. The colloquy between the district
attorney and Ms. White was as follows:
“[MR. SMITH, the district attorney]: If, after
considering the evidence, you are convinced beyond
a reasonable doubt that he is guilty of capital
murder, then you as a juror, along with the other
eleven, will then decide the answers to some
questions. Basically two questions. If you answer
those two questions yes, then he will be put to
death. If you answer either one of them no, or
both no, he will serve a life sentence in the
penitentiary. But it will be one or the other, if
he is found guilty of capital murder.
“[MS. WHITE]: Well, could I explain my answer on the
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question, or should I just wait for your question.
“[MR. SMITH]: Go on and explain.
“[MS. WHITE]: About capital murder. Because my feeling
about capital murder has always))I don’t like taking
a life for a life unless it is a case of a serial
murderer who has murdered. So, I don’t know what
my feelings would be about a first time offense of
capital murder.
“[MR. SMITH]: You understand that our law provides that
there are certain crimes that are classified as
capital murder.
“[MS. WHITE]: I know.
“[MR. SMITH]: And that))
“[MS. WHITE]: It doesn’t matter how many murders; if it
is one murder or ten, or more?
“[MR. SMITH]: Yes, ma’am.
“[MS. WHITE]: I understand.
“[MR. SMITH]: Are you saying that in your opinion that
you could only consider the death penalty in a
serial murder type case?
“[MS. WHITE]: Yes. That is what I am saying.
“[MR. SMITH]: And not in any other type case?
“[MS. WHITE]: Well, when I say serial, I am talking
about))if that includes, you know, two or more. I
don’t know where you draw the line. I would draw
it at two.
“[MR. SMITH]: Two previous killings?
“[MS. WHITE]: Yes. I mean, more than one.
“[MR. SMITH]: Is that the only situation that you could
consider it?
“[MS. WHITE]: I think that’s))
“[MR. SMITH]: I am not trying to))You are entitled to
your opinion, absolutely. In your questionnaire
you stated that in case of repeat offenders only.
You used the word only. Is that your feeling about
it, that those are the type cases, only?
“[MS. WHITE]: I don’t know the answer to that. I think
it would, but))If one murder is))I know))If it is
proven definitely, beyond a reasonable doubt, I
can’t))I don’t believe that I could))I could vote
for a death penalty if it was for one))the first
offense.
“[MR. SMITH]: Is that regardless of the facts of the
case, whatever the facts might be?
“[MS. WHITE]: Well, if you are talking about someone
who just kills in cold blood, I mean just))or if it
is))or if it is accidental or under))under))there
are all kinds of circumstances. Are you talking
about premeditated murder, or something like that,
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where someone plans someone’s death?
“[MR. SMITH]: Well, I am trying to determine))
“[MS. WHITE]: Where I draw the line?
“[MR. SMITH]: Yes, ma’am. Where you draw the line.
“[MS. WHITE]: Well, I think the only way I would know
where I would draw the line, if I was just faced
with it immediately, and I had to rely on my own
judgment and instinct, I guess, too. The way I
feel now, I))I’ve never been in court before. I’ve
never served on a jury. I have no))I don’t have any
idea at all how I will))I know that I could be a
responsible citizen. But the way I feel now, if I
were asked to vote for a death penalty for someone
who had committed one crime, even capital murder, I
would go with my instincts to say that I would say
for, maybe, life for imprisonment or a long
sentence in prison. I certainly would want a
punishment. But I don’t think this))
“[MR. SMITH]: I submit, Your Honor, that the juror
should be excused.”
After timely objection by the defense, the Court questioned Ms.
White further.
“THE COURT: You feel, Jonnie, as you sit here now, that
you couldn’t give the death penalty except where a
person had been convicted of murder before, or that
kind of crime before?
“[MS. WHITE]: Yes. That’s the way that I feel.
“THE COURT: All right. I am going to excuse her.”
Where a party seeks to exclude a venire member because of
bias, that party must demonstrate through questioning that the
potential juror lacks impartiality. Wainright v. Witt, 469 U.S.
412, 424, 105 S. Ct. 844, 852, 83 L. Ed. 2d 841 (1985) (citing
Reynolds v. United States, 98 U.S. (8 Otto) 145, 157, 25 L. Ed. 244
(1878)). Opposition to capital punishment, in itself, is not
sufficient cause for a judge to exclude a member of the jury pool.
As the Supreme Court stated in Lockhart v. McCree:
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[N]ot all who oppose the death penalty are subject to
removal for cause in capital cases; those who firmly
believe that the death penalty is unjust may nevertheless
serve as jurors in capital cases so long as they state
clearly that they are willing to temporarily set aside
their own beliefs in deference to the rule of law.
476 U.S. 162, 176, 106 S. Ct. 1758, 1766, 90 L. Ed. 2d 137 (1986).
The proper standard for determining when a court may exclude
a venire member for cause because of her views on capital
punishment is “whether the juror’s views would ‘prevent or
substantially impair the performance of [her] duties as a juror in
accordance with [her] instructions and [her] oath.’” Witt, 469
U.S. at 424, 105 S. Ct. at 852 (quoting Adams v. Texas, 448 U.S.
38, 45, 100 S. Ct. 2521, 2526, 65 L. Ed. 2d 581 (1980)). Where the
court finds that even one juror was improperly excluded, the
defendant is entitled to a new sentencing, because the right to an
impartial adjudication is “‘so basic to a fair trial that [its]
infraction can never be treated as harmless error.’” Gray v.
Mississippi, 481 U.S. 648, 668, 107 S. Ct. 2045, 2057, 95 L. Ed. 2d
622 (1987) (plurality opinion); see also Davis v. Georgia, 429 U.S.
122, 123, 97 S. Ct. 399, 400, 50 L. Ed. 2d 339 (1976) (per curiam)
(remanding capital case for reconsideration where a single juror
was erroneously removed for bias).
The district attorney and the court established that Ms. White
personally believed that only multiple murders merited capital
punishment. Unfortunately, neither determined clearly that this
view would impair her in answering the two special issues that
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determine sentencing in Texas capital cases. The relevant question
here is whether Ms. White could set aside her personal opinions and
apply the law, or whether those beliefs would distort her view of
the facts or alter her answers to the two special issues.
Ms. White stated several times her own views about what she
considered the proper level of punishment for first-time murderers.
But she also stated that she wanted to be a responsible citizen,
that she could follow the law as the judge stated it, and that
strong feelings of civic duty would make her do her best to render
an impartial verdict. The district attorney’s questions about
where Ms. White would “draw the line” if she were the Texas
legislature simply do not address the relevant question.1
The closest Ms. White came to revealing whether or not her
views would influence her perception of the evidence or honesty in
1
A more carefully crafted question and an answer clearly
demonstrating bias may be found excerpted in our holding in Riles
v. McCotter, in which the following exchange took place during voir
dire:
COURT: . . . On the one hand, you tell me that you have this
religious scruple against the infliction of death as
punishment for crime. So, what I am asking you is, if that is
the case, would the fact that the death penalty is a
possibility affect the way you would answer any question
involved in this lawsuit, up to and including, let’s say, on
the guilt or innocence))might you find it murder instead of
capital murder so you wouldn’t be faced with the death
penalty?
MR. NIX: I am afraid I would have to say it would influence my way
of thinking.
Riles v. McCotter, 799 F.2d 947, 949 n.2 (5th Cir. 1986).
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answering the special issues was, at best, equivocal. The trial
judge asked her, “You feel, Jonnie, as you sit here now, that you
couldn’t give the death penalty except where a person had been
convicted of murder before, or that kind of crime before?” Ms.
White responded, “Yes. That’s the way that I feel.” The trial
court found as a matter of fact that this answer indicated that Ms.
White would be biased against capital punishment and apparently
that her convictions would impair her decisionmaking.
A trial judge’s finding of bias during voir dire is a
determination of fact, subject to a presumption of correctness on
collateral review, either under the old 28 U.S.C. § 2254(d),2 Witt,
469 U.S. at 426-27, 105 S. Ct. at 853-54, or under the amended
provisions of the AEDPA.3 Although the record is not as clear as
2
Section 2254(d), before amendment by the AEDPA, provided:
In any proceeding instituted in a Federal court by
an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court, a
determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction in
a proceeding to which the applicant for the writ and the
State or an officer or agent thereof were parties,
evidenced by a written finding, written opinion, or other
reliable and adequate written indicia, shall be presumed
to be correct . . . . [T]he burden shall rest upon the
applicant to establish by convincing evidence that the
factual determination by the State court was erroneous.
3
Amended 28 U.S.C. § 2254(e)(1) provides:
In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody pursuant to
the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed to
be correct. The applicant shall have the burden of
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we might like, the trial judge had enough evidence to make his own
factual determination of bias based on the questioning of counsel
and Ms. White’s answers. See Riles v. McCotter, 799 F.2d 947, 949-
50 (5th Cir. 1986) (venire member properly excluded for saying she
could not impose the death penalty for murders that did not involve
mutilation). Ms. White stated several times that she believed that
capital punishment was inappropriate for the type of crime
committed by Fuller, even though Texas law unambiguously made a
single murder a capital offense. When the trial judge asked her if
she felt that she “couldn’t” give the death penalty for a first
offense, she said, “Yes. That’s the way I feel.” She also said,
“I don’t believe that I could))I could vote for a death penalty if
it was for one))the first offense.” Fuller simply has not provided
enough evidence to rebut the presumption that the trial court was
correct. Therefore we will not upset the trial court’s
determination that the witness was biased and properly excluded
from the jury.
E
Finally, Fuller contends that the court violated his
constitutional rights by refusing his request for state-funded
expert assistance under 21 U.S.C. § 848 (q)(4)(B).4 In connection
rebutting the presumption of correctness by clear and
convincing evidence.
4
Although a COA is required for habeas appeals, there is
no such requirement for appeals under Section 848(q)(4)(B).
Sterling v. Scott, 57 F.3d 451, 454 n.3 (5th Cir. 1995), cert.
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with his district court habeas action, Fuller filed two ex parte
motions for authorization to obtain expert assistance in
preparation for an evidentiary hearing scheduled for December 13,
1995. Specifically, he sought the aid of a clinical and forensic
psychologist and of a clinical and forensic pathologist. The
district court requested that the government reply to Fuller’s ex
parte motions, and the court later denied both of Fuller’s motions
without discussion “for the reasons set forth in the Respondent’s
opposition.” Judging from the government’s briefs on the issue,
the district court apparently decided that the experts, at best,
could only offer proof about issues that were procedurally barred.
The district court then denied Fuller’s petition for habeas relief
the day before the scheduled hearing, December 12, 1995.
Curiously, the court conducted the evidentiary hearing on schedule
the following day, even though it had already issued an order
disposing of Fuller’s petition. Fuller’s counsel proceeded at the
hearing without the requested expert assistance for his client.
The record does nothing to explain this anomaly.
Two considerations convince us that Fuller was not denied a
constitutional right as required for grant of COA. First, because
he could not show substantial need for the assistance of the
experts, Fuller was not entitled to their assistance under the
denied, ___ U.S. ___, 116 S. Ct. 715, 133 L. Ed. 2d 669 (1996);
Barnard v. Collins, 13 F.3d 871, 878 n.6 (5th Cir.), cert. denied,
510 U.S. 1102, 114 S. Ct. 946, 127 L. Ed. 2d 363 (1994).
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statute. Second, Fuller was denied an ex parte hearing on his
claims, but his relevant interests under the statute))namely the
provision of experts where necessary))were not infringed.
In considering these two points, we first turn to the statute.
Congress passed the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-
690, § 7001(b), 102 Stat. 4181, 4193-94 (1989) to amend section 408
of the Controlled Substances Act, 21 U.S.C. § 848, providing legal
counsel and the assistance of experts for prisoners’ section 2254
and 2255 challenges to capital sentences. Title 21 U.S.C. § 848
(q)(4)(B) provides:
In 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
in accordance with paragraphs (5), (6), (7), (8), and
(9).
(emphasis added). When the district court entertained Fuller’s
motions, Section 848(q)(9) added the following:
Upon a finding in ex parte proceedings that
investigative, expert or other services are reasonably
necessary for the representation of the defendant,
whether in connection with issues relating to guilt or
sentence, the court shall authorize the defendant’s
attorney to obtain such services on behalf of the
defendant and shall order the payment of fees and
expenses therefore, under paragraph (10).
(emphasis added). Paragraph 10 provides that the court shall fix
reasonable rates for reasonable expenses. 21 U.S.C. § 848(q)(10).
In 1996, the AEDPA section 108 changed 848(q)(9), removing the
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ex parte proceeding requirement and changing the mandatory “shall”
language to the discretionary “may.” AEDPA § 108, Pub. L. No. 104-
132, 110 Stat. 1226 (1996). However, when the district court
considered Fuller’s motions, the AEDPA had not yet been passed, and
it denied Fuller’s requests under the old standard.
In light of the statutory language, we first note that Fuller
did not show a substantial need for expert assistance. The Supreme
Court has held that the language of section 848(q)(4)(B) “[o]n its
face . . . grants indigent capital defendants a mandatory right to
qualified legal counsel and related services” in any federal post
conviction proceeding. McFarland v. Scott, 512 U.S. 849, 854, 114
S. Ct. 2568, 2571, 129 L. Ed. 2d 666 (1994) (footnote omitted).
Claimants under the statute need only show indigence and that the
services requested are “reasonably necessary.” See Lawson, 3 F.3d
at 753 (interpreting § 848(q)(4)(B) and 18 U.S.C. § 3006A(e)(1)).
The government does not contest Fuller’s indigence; indeed, the
court allowed him to proceed in forma pauperis. However, the
government asserts that clinical and forensic psychiatrists and
pathologists were not necessary because their testimony would be
procedurally barred. Fuller’s motions do not say exactly how he
would employ the experts in preparation for the evidentiary
hearing, but he does not claim that they can show that any aspect
of his trial violated Fuller’s constitutional rights. In addition,
Fuller’s failure to raise these forensic issues at trial or direct
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appeal bars their consideration in a collateral attack unless
Fuller shows cause and prejudice or that a miscarriage of justice
would result. Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112 S.
Ct. 1715, 1721, 118 L. Ed. 2d 318 (1992). He has shown none of the
above. Therefore we cannot say that the district court erred in
its ultimate conclusion that the experts were reasonably necessary,
regardless of its improper request for government briefing on the
issue.
Second, the denial of ex parte hearings on this issue does not
harm any substantial guarantees of the statute. The district court
did not inquire into the necessity of expert aid, but instead
invited the government, which was not a party in interest, to
respond to the ex parte motion. The district court then summarily
denied the request based on the government’s response.
Ex parte proceedings, by definition, are “taken or granted at
the instance and for the benefit of one party only, and without
notice to, or contestation by, any person adversely interested.”
Black’s Law Dictionary 576 (6th ed. 1995). The district court’s
disregard of section 848(q)’s ex parte proceeding requirement and
the court’s reliance on the government’s response were improper in
this case.
The question of whether failure to provide ex parte
proceedings as guaranteed by section 848(q) constitutes reversible
error is an issue of first impression for this Circuit. The Fourth
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Circuit has declared that ex parte proceedings are the “only proper
means of adjudicating appointment motions” under the section, but
then held that the district court’s adversary hearing on the
petitioner’s section 848(q) motion was not reversible error.
Lawson, 3 F.3d at 751-52. The Lawson court held that certain
“countervailing considerations” made the hearing a “justifiable
attempt to ensure that the factual allegations supporting Lawson’s
petition” had been fairly presented. Id. at 752.
In an unpublished opinion, the Ninth Circuit granted a writ of
mandamus, ordering a district court to vacate its habeas ruling and
to grant petitioner assistance under section 848(q). Daniels v.
United States Dist. Court for Cent. Dist. of California, 76 F.3d
385 (1995) (table). The district court in Daniels appointed a
psychiatric expert to determine whether a psychiatrist was
necessary to his habeas case. Apparently holding this to be
reversible error, the Ninth Circuit issued an unpublished opinion
granting a writ of mandamus directing the district court to provide
assistance. The Ninth Circuit then withdrew that opinion, granted
rehearing, then issued a superseding table opinion granting the
writ of mandamus again. See Daniels v. United States Dist. Court
for Cent. Dist. of California, No. 94-70295, 1995 WL 419148 at *6
(July 18, 1995) (opinion withdrawn). The fact-specific opinion of
the Fourth Circuit and table opinion of the Ninth Circuit give us
little guidance on this question.
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Although this circuit has not yet addressed the precise issue
here, we have held that it was reversible error to misconstrue the
analogous appointment provision of the Criminal Justice Act, 18
U.S.C. § 3006A(e), which requires that decisions on expert
appointment be made "after appropriate inquiry in an ex parte
proceeding." 18 U.S.C. § 3006A(e)(1); United States v. Hamlet, 456
F.2d 1284, 1285 (5th Cir. 1972) (per curiam) (trial court erred in
denying section 3006A motion without conducting the ex parte
inquiry required by statute); United States v. Theriault, 440 F.2d
713, 715 (5th Cir. 1971) (same). In the section 3006A(e) context,
we have remanded to the district court for adherence to the
statute. Hamlet, 456 F.2d at 1285; Theriault, 440 F.2d at 715.
However, the guarantees of section 3006A(e) are distinct in at
least one important respect: the statute provides a defendant
expert assistance for preparation for his trial, and provision of
those statutory guarantees therefore takes on a constitutional
dimension not present in collateral habeas corpus proceedings.
Compare Theriault, 440 F.2d at 716-717 (Wisdom, J., concurring)
(invoking indigent criminal defendant’s constitutional right to
court-appointed experts to assist with defense) with Murray v.
Giarratano, 492 U.S. 1, 10, 109 S. Ct. 2765, 2770, 106 L. Ed. 2d 1
(1989) (holding that even capital prisoners have no constitutional
right to counsel in habeas cases). The fact that there is no
constitutional right at stake in the district court’s failure to
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provide ex parte proceedings in the habeas context counsels against
vacating the district court’s decision on so narrow a ground.
The district court, in our view, should have allowed Fuller to
demonstrate the need for expert assistance. It failed both in not
discussing the necessity of the experts and in allowing the
government to interfere in what should have been an ex parte
determination. That the court dismissed Fuller’s motion so
summarily and on the sole basis of the government’s (improper)
rebuttal is particularly troubling. However, because the court was
ultimately correct in holding that such experts were not
“reasonably necessary,” because Fuller had no constitutional right
to an ex parte hearing, and because the district court on remand
could ratify its earlier ruling by reciting the reasons briefed by
the government, we hold that the district court’s unorthodox
procedure in denying Fuller’s motion is harmless error, not the
denial of a constitutional right. Therefore we deny COA on this
issue.
IV
For the foregoing reasons, we GRANT Fuller’s application for
a COA on all issues but the last, and we AFFIRM the district
court’s denial of Fuller’s petition.
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