Aaron Lee Fuller,
Petitioner-Appellant,
v.
Gary L. Johnson, Director, Texas Department of
Criminal Justice,
Institutional Division, Respondent-Appellee.
No. 96-10027
Federal
Circuits, 5th Cir.
May 30, 1997
Appeal from
the United States District Court for the
Northern District of Texas.
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.
* 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 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.
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, 137 L.Ed.2d 315 (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 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
* 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 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
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 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
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, 10-12, 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 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 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 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,
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.
Wainwright 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:
[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
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.
The closest Ms. White came to
revealing whether or not her views would
influence her perception of the evidence or
honesty in 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),
Witt, 469 U.S. at 426-27, 105 S.Ct. at 853-54,
or under the amended provisions of the AEDPA.
Although the record is not as clear as 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).
In connection 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 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, 4393-94
(1988) 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 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 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 not reasonably necessary,
regardless of the court's 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 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.
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 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.
*****
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).
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.
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
rebutting the presumption of correctness by
clear and convincing evidence.
