United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 1, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-10979
MAURO MORRIS BARRAZA,
Petitioner-Appellant,
versus
JANIE COCKRELL, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Mauro Morris Barraza is a prisoner of the State of Texas under
a sentence of death imposed after a jury in Tarrant County
convicted him of the murder of 73-year-old Vilorie Nelson in the
course of a burglary of her home in Fort Worth, Texas.
Barraza’s conviction and sentence have been affirmed and his
state habeas petition denied by the Texas Court of Criminal
Appeals.1 The Supreme Court has declined review of both decisions.2
The United States District Court has in turn denied his federal
petition for federal habeas relief and refused to issue a
certificate of appealability.3
Barraza asks this court to issue a certificate of
appealability on three interrelated issues:4
1. Whether the federal district court violated the Sixth
and Fourteenth Amendments when it denied Barraza’s motion
to obtain funding for additional psychiatric,
psychological and medical testing.
2. Whether the state habeas court violated the Sixth and
Fourteenth Amendments when it denied Barraza’s motion to
obtain funding for additional psychiatric, psychological
and medical testing.
3. Whether the federal district court abused its
discretion under 21 U.S.C. §848(q)(4)(B) when it denied
Barraza’s motion to obtain funding for additional
psychiatric, psychological and medical testing.
As the State points out, Barraza does not need a certificate to
appeal the district court’s order denying funding for additional
1
Barraza v. State, No. 71,275 (Tex. Crim. App. Oct. 5,
1994); Ex Parte Barraza, No. 38,672-01 (Tex. Crim. App. Dec. 9,
1998).
2
Barraza v. Texas, 514 U.S. 1097 (1995); Barraza v. Texas,
528 U.S. 825 (1999).
3
Barraza v. Cockrell, No. 4:99-CV-064-Y (N.D. Tex. July 31,
2002) (judgment denying relief); Barraza v. Cockrell, No. 4:99-
CV-064-Y (N.D. Tex. Sept. 6, 2002) (order denying COA).
4
As Barraza has organized his Application for a Certificate
of Appealability, Issue number one controls Barraza’s claims for
relief numbers one through four of his federal petition, all of
which complain of the denial of funding by the federal district
court. Similarly, claims five through eight complain of similar
denial by the Texas Court of Criminal Appeals.
2
psychiatric, psychological, and medical testing pursuant to 21
U.S.C. §848(q)(4)(B). For essentially the reasons set forth in
Judge Means’ ruling filed on July 31, 2002, and for reasons we will
explain, we deny the requested certificates of appealability and
affirm the order refusing additional testing.
I
In deciding a request for a certificate of appealability, we
ask if a petitioner “has made a substantial showing of the denial
of a constitutional right.”5 Barraza need not “convince a judge,
or, for that matter, three judges, that he ... would prevail,” but
“must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
wrong.”6
II
There is no claim before us that Barraza did not murder Mrs.
Nelson in the course of a burglary. The evidence was overwhelming
and included forensic evidence that Barraza raped her as she lay
dying from blows to the head and from being stomped on the chest.
The defense was insanity. At trial, Barraza offered evidence that
he had been taking drugs since the age of seven and was high on
crack at the time of the murder. This evidence came through the
5
28 U.S.C. § 2253(c)(2).
6
Miller-El v. Cockrell, 123 S. Ct. 1029, 1038-40 (2003)
(internal quotation marks omitted).
3
testimony of Dr. Peek, a defense retained psychiatrist. Dr. Peek
told the jury that in his opinion Barraza was suffering from a
severe mental disease at the time of the murder and that his
addiction to drugs came from low self-esteem, genetic background,
and poor environment. The state countered with two experts who
testified that Barraza had no mental disease or defect and
understood that what he had done was wrong. They also thought that
Barraza was faking.
III
After Barraza had exhausted his direct appeal, the state trial
court set an execution date. Barraza’s state habeas petition was
then filed on June 29, 1995, and the execution date was lifted to
allow the state habeas to proceed. The state habeas judge granted
Barraza’s request for money to obtain psychiatric testing,
responding to the argument that the possibility of organic brain
damage had been raised at trial.
On January 30, 1996, the trial court held an evidentiary
hearing on the motion at which it heard the testimony of Barraza’s
expert, Dr. J. Douglas Crowder, a forensic psychiatrist and
professor at Southwestern Medical School. Dr, Crowder expressed
the opinion that the testing done by Drs. Coons, Peek, and Parker,
who testified at trial, was inadequate and that more testing would
be necessary to rule out the possibility of organic brain damage.
The trial court did not rule immediately. Rather, it asked that
Barraza be examined by a competent expert appointed by the court.
4
Then in a hearing held on May 6, 1996, Dr. Melissa Renee Ferguson,
the court-appointed expert, testified that Barraza understood the
death penalty, was competent to be executed, and had no significant
deficits which would indicate the need to go further. The court
then refused to fund more testing, finding no objective reason for
more testing. These findings were adopted by the Texas Court of
Criminal Appeals.
A similar request for funding to the United States District
Court followed, supported by an affidavit of Dr. Crowder,
essentially stating that he adhered to his view that further
testing was needed despite Dr. Ferguson’s testimony. The federal
district court found no objective reason for more testing and
refused the requested funding.
IV
The requests for COA and appeal all rest on claims that these
denials of money to continue the examination of this petitioner
deprived Barraza of various constitution rights, including a right
to effective habeas counsel and rights to access to assistance from
experts necessary to the defense of an accused under Ake v.
Oklahoma7 and federal statutes. The argument is without merit.
The question of mental capacity was presented to the jury at
trial. Petitioner is now attempting to develop more evidence to
supplement, if not contradict the expert testimony rejected by the
7
470 U.S. 68 (1985).
5
jury. The state habeas judge and the federal district judge were
uncertain of just where all this was headed beyond its relevance to
a Ford inquiry into competence to be executed.8 We can imagine
that it has some relevance to a claim that trial counsel was
ineffective for not digging deeper. But now having done so, the
effort has not produced the evidence that Barraza says his counsel
ought to have earlier located. Petitioner’s argument is then that
the effort on collateral review is constitutionally deficient.
That is not persuasive.
Petitioner’s contentions suffer from their failure to
acknowledge that there is no constitutional right to competent
habeas counsel and his meritless suggestion that a statutory
requirement for counsel creates a constitutionally secured right.
Regardless, there are no facts before us that would breathe life
into petitioner’s assertions and we are left with only a lawyer’s
theory and no warrant for any assertion that the state procedures
for developing the evidence were constitutionally inadequate. To
the contrary. This state judge removed the pressure of an
execution date and substituted an orderly schedule for proceeding.
She also funded expert assistance in the habeas process.
Ultimately, after engaging a second expert, the trial judge, with
findings that are fairly supported by the record, declined to
authorize additional money. In short, the legal theories of
8
Ford v. Wainwright, 477 U.S. 399 (1986).
6
petitioner lack factual support. We cannot grant the request for
a certificate of appealability.
For the same reasons, we must affirm the appeal from the
district court order refusing to fund additional testing. We find
no error in its conclusion that such was not reasonably necessary
within the meaning of 21 U.S.C. § 848(q)(4)(B).
The request for COA is DENIED, and the order of the district
court denying additional funding is AFFIRMED.
7