IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-50441
_____________________
JAMES OTTO EARHART,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
_________________________________________________________________
January 9, 1998
Before KING, JOLLY, and DeMOSS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge
This appeal presents the question whether the district court
erred in denying federal habeas relief to James Otto Earhart. A
Texas jury convicted Earhart for capital murder and sentenced him
to death. The conviction and sentence were affirmed on direct
appeal. Earhart then filed a petition for habeas relief in the
federal district court under 28 U.S.C. § 2254. He alleged, inter
alia, that defense counsel rendered ineffective assistance in
violation of his Sixth Amendment rights. He further alleged that
failure to define “reasonable doubt” for the jury in his case, but
requiring it in all cases after his, violated his due process and
equal protection rights. In a different vein, Earhart argued that
his petition should be dismissed and his execution stayed until he
had had an opportunity to exhaust his state habeas remedies. In
response to this argument, however, the State waived the exhaustion
requirement. The district court accepted the State’s waiver and,
examining the merits of Earhart’s remaining claims, denied relief.
Earhart appeals. Finding no error in the district court’s
decision, we affirm.
I
On May 26, 1987, the body of nine-year-old Kandy Kirtland was
discovered in a trash heap in Bryan, Texas. She had been missing
for two weeks. The young girl was discovered with her hands tied
behind her back with an electrical cord and a bullet wound to her
head.
The same day, Earhart was arrested in connection with
Kirtland’s death. He was indicted two weeks later on charges of
capital murder. Earhart pled not guilty, and the case went to
trial a year later. As part of its case against Earhart, the
prosecution presented an expert witness who testified that the
bullet recovered from the girl was “analytically indistinguishable”
from those loaded in a gun later discovered among Earhart’s
belongings. The expert further testified that analytically
indistinguishable bullets are typically found within the same box
of ammunition. The expert conceded, however, that he could not
determine whether the bullet that killed Kirtland was fired from
Earhart’s gun and acknowledged that the bullet may not have come
2
from the same box of ammunition as the other bullets. The jury
found Earhart guilty of murder while in the course of kidnaping and
sentenced him to death by lethal injection.1
Earhart took a direct appeal to the Texas Court of Criminal
Appeals, which affirmed his conviction on September 18, 1991. See
Earhart v. State, 823 S.W.2d 607 (Tex. Crim. App. 1991). The
United States Supreme Court granted Earhart’s writ of certiorari
and remanded the case for further consideration in the light of its
opinion in Johnson v. Texas, 113 S.Ct. 2658 (1993).2 On remand,
the Court of Criminal Appeals again affirmed Earhart’s conviction
and sentence. See Earhart v. State, 877 S.W.2d 759 (Tex. Crim.
App. 1994). Earhart’s second petition for certiorari was denied on
October 31, 1994. Earhart v. Texas, 513 U.S. 996 (1994).
Thereafter, the trial court scheduled Earhart’s execution for
February 7, 1995. Earhart immediately attempted to initiate state
habeas proceedings. He requested the state trial court to stay or
withdraw his execution date and to appoint counsel to assist him in
preparing a state habeas application. Both requests were denied on
January 23, 1995. As a result, Earhart initiated federal habeas
proceedings by filing a motion for appointment of counsel and for
1
For a more complete discussion of the facts and evidence
introduced at trial, see Earhart v. State, 823 S.W.2d 607, 611-16
(Tex. Crim. App. 1991).
2
The issue in Johnson involved the constitutionality of
Texas’s death penalty.
3
a stay of execution. The district court granted both motions on
February 2, 1995.
Earhart filed his federal habeas petition on September 29,
1995. He alleged six grounds in support of his petition: (1) trial
counsel rendered ineffective assistance by failing to object
properly to the admissibility of Earhart’s tape-recorded statement
to police; (2) trial counsel rendered ineffective assistance by
failing to request an expert regarding analysis of bullet evidence;
(3) the decision by the Texas Court of Criminal Appeals to require
a definition of “reasonable doubt” in all subsequent cases,
announced 49 days after rejecting the same rule of law in Earhart’s
case, violated his due process and equal protection rights; (4) the
denial of an instruction informing the jury that it could give
effect to mitigating evidence by declining to impose the death
penalty violated Earhart’s Eighth and Fourteenth Amendment rights;
(5) trial counsel rendered ineffective assistance by failing to
adduce sufficient evidence to support such an instruction; and (6)
the “cumulative and synergistic effect” of trial counsel’s errors
amounted to ineffective assistance. Earhart contended that most of
these claims had not been presented to state courts and that his
petition should be dismissed so that he could exhaust state
remedies before proceeding in federal court.
In response, the State waived the exhaustion requirement and
filed a motion for summary judgment. The district court granted
summary judgment against Earhart on May 15, 1996. Earhart timely
4
filed a notice of appeal. The district court issued a certificate
of probable cause on June 21, 1996. This appeal followed.
II
On appeal, Earhart has narrowed the number of his claims. He
now challenges the district court’s decision on the ineffective
assistance of counsel claims concerning his tape-recorded statement
and denial of a defense expert, as well as his due process and
equal protection claim. He further argues that the district court
erred by accepting the State’s waiver of the exhaustion
requirement. In considering Earhart’s claims under 28 U.S.C.
§ 2254, we accord a presumption of correctness to any state court
factual findings. See Mann v. Scott, 41 F.3d 968, 973 (5th Cir.
1994), cert. denied, 514 U.S. 1117 (1995). We review the district
court’s factual findings for clear error, but decide any issues of
law de novo. Id. Because claims concerning ineffective assistance
of counsel generally involve mixed questions of law and fact, we
review them de novo as well. United States v. Faubion, 19 F.3d
226, 228 (5th Cir. 1994).
III
We first address Earhart’s argument that the district court
erred by accepting the State’s waiver of the exhaustion requirement
contained in 28 U.S.C. § 2254. By refusing to permit him to
exhaust his state habeas remedies, Earhart insists, the district
court “cheated” him out of his statutory right to state habeas
proceedings. The State responds that exhaustion is unnecessary
5
because Earhart has not raised a claim requiring further factual
development or a claim implicating important state interests.
We have held that exhaustion of state habeas remedies is not
a jurisdictional prerequisite and, as a result, may be waived by
the State. McGee v. Estelle, 722 F.2d 1206, 1212 (5th Cir. 1984)
(en banc); accord Granberry v. Greer, 481 U.S. 129, 132-33 (1987).
The requirement exists to protect states’ interests in the
enforcement of federal laws and prevent disruption of state
judicial proceedings. Rose v. Lundy, 455 U.S. 509, 518 (1982).
The district court, however, need not accept a state’s waiver of
the exhaustion requirement. The district court, or this court, in
the exercise of its discretion, may reject a waiver in the
interests of comity. See McGee, 722 F.2d at 1214. Thus, for
example, if the case presents an issue involving an unresolved
question of fact or state law, the court may insist on complete
exhaustion to ensure its ultimate review of the issue is fully
informed. See Granberry, 481 U.S. at 134-35; see also Graham v.
Johnson, 94 F.3d 958, 968-70 (5th Cir. 1996).
Such circumstances are not present in this case. The facts
necessary to dispose of Earhart’s ineffective assistance of counsel
claims are in the record.3 The issue whether the court-announced
rule regarding the definition of reasonable doubt should be applied
3
For this reason, Earhart cannot sustain his claim that the
district court erred by refusing to hold an evidentiary hearing on
his ineffective assistance of counsel claims. See Amos v. Scott,
61 F.3d 333, 346 (5th Cir.), cert. denied, 116 S.Ct. 557 (1995).
6
retroactively to Earhart’s case is a question of law. Thus, the
claims Earhart advances turn on the resolution of legal, not
factual, issues. Moreover, to the extent Earhart’s claims involve
questions of state law, they entail straight-forward application of
principles already settled by state courts. Finally, the principal
interest of the prisoner is in obtaining speedy relief on his
claims, see Rose, 455 U.S. at 520, which is served in this case by
giving immediate consideration to the merits of Earhart’s claims.4
In short, little counsels in favor of compelling exhaustion of
state habeas remedies.
IV
We next consider Earhart’s ineffective assistance of counsel
claims. Earhart argues that his trial counsel rendered ineffective
assistance by (1) failing to object to the admissibility of his
tape-recorded statement to police on state law grounds and (2)
failing to request the assistance of a defense expert on the
elemental composition of the bullets in this case. Earhart further
4
Of course, Earhart may seek state court habeas review solely
for the purpose of delaying his impending execution. This is not,
however, a legitimate reason for a federal court requiring
exhaustion of state remedies. Furthermore, as the State notes in
its brief, dismissing Earhart’s present claims would have the
ultimate effect of requiring him to litigate his future federal
habeas petition under the more stringent standards of the AEDPA.
Thus, we conclude that rejecting the State’s waiver of the
exhaustion requirement would serve no legitimate purpose,
especially given the time and resources already spent taking this
case on appeal, nor in any event would it likely benefit Earhart
himself.
7
contends that the district court’s failure to hold an evidentiary
hearing on these issues was reversible error.
To prevail on these claims, Earhart must satisfy the familiar
two-part test announced in Strickland v. Washington, 466 U.S. 668
(1984). The Strickland test requires the habeas petitioner to
prove that counsel’s performance was deficient and that the
deficient performance resulted in actual prejudice to the
petitioner’s defense. Armstead v. Scott, 37 F.3d 202, 206 (5th
Cir. 1994), cert. denied, 514 U.S. 1071 (1995). That is, Earhart
must affirmatively prove that counsel’s performance was objectively
unreasonable and resulted in a reasonable probability that, but for
counsel’s unprofessional errors, the outcome of the proceedings
would have been different. See id. Applying these general
guidelines, we turn to the merits of Earhart’s ineffective counsel
claims.
A
Earhart first argues that defense counsel rendered ineffective
assistance by failing to object properly to the admissibility of
his recorded statement to the police. In particular, Earhart
contends that the tape-recorded statement he gave to police was not
prefaced with a specific warning of his right to remain silent, as
required by article 38.22 of the Texas Code of Criminal Procedure.
Defense counsel did not object to admission of the statement on
these grounds, and the Court of Criminal Appeals refused to review
8
the claim on direct appeal because of counsel’s failure to preserve
the error under state law. See Earhart, 623 S.W.2d at 621.
Texas law is clear that, so long as the State substantially
complies with the requirements of article 38.22, failure to give
the precise warnings included in the statute does not render a
confession inadmissable. See Hardesty v. State, 667 S.W.2d 130,
135 (Tex. Crim. App. 1985); see also Stinnett v. State, 720 S.W.2d
663, 666 (Tex. App. 1986). The State argues that the warnings
Earhart received before giving a statement substantially complied
with the requirements of article 38.22. The record shows that
Earhart received the following warning before giving the recorded
statement:
You have the right to have a lawyer present to advise you
prior or during any questioning. You have the right to
terminate this interview at any time. And any statement
that you do make may and probably will be used against
you at your trial. Do you understand all of the above
rights?
The record further reveals that Earhart had been warned in accord
with article 38.22 on at least two other occasions (including the
right to remain silent), had signed a written rights form advising
him of his article 38.22 rights, and had been similarly advised by
a magistrate judge 14 minutes before giving the statement.
Because admission of the statement did not violate article
38.22, the State contends, Earhart cannot prove either prong of the
Strickland test. We agree. In Clark v. State, 627 S.W.2d 693
(Tex. Crim. App. 1982), the Texas Court of Criminal Appeals,
9
addressing the adequacy of warnings under article 38.22, held that
“the coupling of the right ‘not to make a statement’ with the right
to ‘terminate any interview at any time’ if the appellant ‘decided
to talk with us’ adequately conveyed the right to remain silent.”
Id. at 704. Similarly, in the instant case, Earhart was directly
advised of his right to terminate the interview at any time and
then cautioned that any statement he did make would be used against
him at trial. This warning came on the heels of other warnings
more precisely tracking the language of article 38.22 and expressly
relating Earhart’s right to remain silent. We find these warnings,
when read together and as a whole, indistinguishable from those
found sufficient in Clark. Admission of the statement did not
violate article 38.22, and, therefore, Earhart cannot prove that
defense counsel acted unreasonably in not objecting to admission of
the statement.
B
Earhart’s second ineffective counsel claim focuses on defense
counsel’s failure to request the assistance of a defense expert to
testify on the elemental composition of the bullet that killed
Kandy Kirtland and on the composition of those seized among
Earhart’s belongings. He argues that, under Texas law, denial of
an expert when properly requested is a structural error mandating
reversal. Because evidence relating to these bullets was a
significant factor at trial, Earhart contends, he was entitled to
10
an expert and would have obtained one had the proper request been
made.
Texas law supports Earhart’s argument. Effective September 1,
1987, an attorney “appointed to represent a defendant in a criminal
proceeding, including a habeas corpus hearing, shall be reimbursed
for reasonable expenses incurred with prior court approval for
purposes of investigation and expert testimony.” Tex. Crim. P.
Code Ann. § 26.05(a). Texas courts have interpreted this provision
to extend to all experts, and the failure to approve expenses under
this provision is reversible error where the defendant demonstrates
a need for the expert’s assistance. See Rodriguez v. State, 906
S.W.2d 70, 73 (Tex. App. 1995). Of course, since Earhart’s counsel
did not request an expert, he had no opportunity to show a need for
expert assistance. Given the significant role the bullet evidence
played in the prosecution’s case, we shall therefore assume Earhart
could have made a sufficient threshold showing that he was entitled
to a defense expert under Texas law. See id.
Nevertheless, the district court properly concluded that
Earhart was not entitled to relief on these grounds because, in
this habeas proceeding, he still had failed to show or even allege
that an expert could be found whose testimony would have altered
the outcome of the state court trial. Even if defense counsel’s
failure to request an expert resulted in a fundamental defect in
Earhart’s trial that would have mandated reversal had it been
raised direct appeal, Earhart still must demonstrate prejudice to
11
the outcome of his trial. “[T]he right to effective assistance of
counsel, both at the trial and appellate level, ‘is recognized not
for its own sake, but because of the effect that it has on the
ability of the accused to receive a fair trial.’” Goodwin v.
Johnson, No. 95-20134, 1998 WL _______, at ___ (5th Cir. ______
1998) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). In
other words, Earhart must show a reasonable probability that, but
for counsel’s failure to request an expert, the jury would have had
a reasonable doubt concerning his guilt. See Ricalday v.
Procunier, 736 F.2d 203, 208 (5th Cir. 1984); see also Gray v.
Lynn, 6 F.3d 265, 269-70 (5th Cir. 1993). “Because the error at
the appellate stage stemmed from the error at trial, if there was
no prejudice from the trial error, there was also no prejudice from
the appellate error.” Ricalday, 736 F.2d at 208; accord Lombard v.
Lynaugh, 868 F.2d 1475, 1482 n.9 (5th Cir. 1989).
Thus, Ricalday makes clear that Earhart’s failure to identify
an expert whose testimony would have altered the outcome of his
trial is fatal to his habeas claim. In Ricalday, the habeas
petitioner argued that his attorney rendered ineffective assistance
by failing to object to a variation between the indictment and the
jury instructions and by failing to raise the issue on direct
appeal. We recognized that such error constituted a fundamental
trial defect under Texas law and would have resulted in reversal on
direct appeal even though no objection had been made at trial. See
736 F.2d at 207. Consequently, we concluded that counsel’s
12
performance was deficient. See id. at 207-08. We refused to grant
habeas relief, however, because the petitioner failed to establish
that the error altered the outcome of the trial. See id. at 208-
09.
For the same reason, we conclude that Earhart’s claim was
properly dismissed. Earhart has not identified an expert witness
available to testify on his behalf or the type of testimony such a
witness would have provided beyond that elicited at trial.
Furthermore, he has not made any showing with respect to how any
expert testimony would affect the outcome of the trial. In short,
assuming defense counsel was deficient in failing to request an
expert, Earhart has not established that this failure prejudiced
his defense or otherwise rendered the outcome of his trial
unreliable.
V
Earhart’s final argument is that the decision by the Texas
Court of Criminal Appeals to require a definition of “reasonable
doubt,” but to do so only in all subsequent cases, announced 49
days after rejecting the same rule of law in Earhart’s case,
violated his due process and equal protection rights. Earhart
requested a jury instruction on the definition of reasonable doubt
during both guilt and punishment phases of his trial. The trial
court refused, and the Court of Criminal Appeals affirmed. Within
less than two months after Earhart’s direct appeal was decided, the
Court of Criminal Appeals decided Geesa v. State, 820 S.W.2d 154
13
(Tex. Crim. App. 1991), which provided a definition of reasonable
doubt to be presented to juries in all cases tried after the date
of its opinion. Earhart argues that the timing of the decision and
the refusal to apply the Geesa rule retroactively to his case
violate the principle of fundamental fairness embodied in the due
process and equal protection clauses of the Constitution.
This claim has no merit. As for Earhart’s contention that
Geesa should have been applied retroactively to his case, this
court’s decision in Lackey v. Scott, 28 F.3d 486 (5th Cir.), cert.
denied, 115 S.Ct. 743 (1994), forecloses the argument. In Lackey,
we rejected the exact same argument regarding the Geesa opinion.
See id. at 491. As for the Texas Court of Criminal Appeal’s timing
of the rule announced in Geesa, Earhart points us to no precedent
establishing a constitutional interest in an appellate court’s
timing of its announcement of a new rule. Under Teague v. Lane,
489 U.S. 288 (1989), habeas relief may not be premised on
constitutional principles yet to be announced or announced after
the challenged conviction became final, with two limited
exceptions.5 Even were we prepared to announce a new rule of
constitutional law in accord with Earhart’s argument (which we are
not), neither Teague exception applies in this case. The
5
The exceptions are limited to rules placing a class of
conduct beyond the government’s power to proscribe and “watershed”
rules of criminal procedure implicating the fundamental fairness
and accuracy of the criminal proceeding. See Teague, 489 U.S. at
311.
14
Constitution neither prohibits trial courts from defining
reasonable doubt nor requires them to do so. Victor v. Nebraska,
114 S.Ct. 1239, 1243 (1994). The district court, therefore,
correctly concluded that Earhart’s claim does not implicate notions
of fundamental fairness.
VI
For the above-stated reasons, the judgment of the district
court is
A F F I R M E D.
15