Murderpedia

 

 

Juan Ignacio Blanco  

 

  MALE murderers

index by country

index by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

  FEMALE murderers

index by country

index by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

 

 

 
   

Murderpedia has thousands of hours of work behind it. To keep creating new content, we kindly appreciate any donation you can give to help the Murderpedia project stay alive. We have many
plans and enthusiasm to keep expanding and making Murderpedia a better site, but we really
need your help for this. Thank you very much in advance.

   

 

 

Harold Amos BARNARD

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: June 6, 1980
Date of arrest: Same day
Date of birth: November 1, 1942
Victim profile: Tuan Nguyen (male, 16, store clerk)
Method of murder: Shooting (sawed-off .22 caliber rifle)
Location: Galveston County, Texas, USA
Status: Executed by lethal injection in Texas on February 2, 1994
 
 
 
 
 
 

 

Date of Execution:
February 2, 1994
Offender:
Harold Barnard #683
Last Statement:
God, please forgive me of my sins. Look after my people. Bless and protect all people. I am sorry for my sins. Lord, take me home with you. Amen. (A couple of sentences garbled.)

 

958 F.2d 634

Harold Amos Barnard, Jr., Petitioner-appellant,
v.
James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-appellee

United States Court of Appeals for the Fifth Circuit

April 3, 1992

Appeal from the United States District Court for the Southern District of Texas.

Before KING, JOLLY and SMITH, Circuit Judges.

KING, Circuit Judge:

Harold Amos Barnard, Jr. appeals the district court's dismissal of his petition for a writ of habeas corpus. He argues that the district court erred in rejecting his contention that the Texas capital sentencing statute as applied in his case unconstitutionally prevented the jury from fully considering and giving effect to all of the mitigating evidence he presented during the conviction and sentencing phases of his trial. Finding no error, we affirm the district court's denial of habeas relief and vacate the stay of execution.

I. BACKGROUND

On June 6, 1980, Barnard killed sixteen-year-old Tuan Nguyen during the robbery of a convenience store in Galveston, Texas.1 A jury convicted Barnard of capital murder on April 1, 1981. After a punishment hearing, the jury affirmatively answered the three special issues submitted pursuant to Texas law, and on April 6, 1981, the court imposed a death sentence.

The Texas Court of Criminal Appeals affirmed Barnard's conviction on April 8, 1987. Barnard v. State, 730 S.W.2d 703 (Tex.Crim.App.1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988). Barnard filed a petition for a writ of habeas corpus in the state trial court on October 31, 1988. On November 22, 1988, the trial court entered its findings of fact and conclusions of law and recommended denial of the writ. The Court of Criminal Appeals found the trial court's findings and conclusions to be supported by the record and denied the writ on January 6, 1989.

The trial court rescheduled Barnard's execution for March 14, 1989. On February 21, 1989, Barnard filed a petition for habeas corpus relief and an application for stay of execution in United States district court. The district court stayed the execution pending its consideration of Barnard's petition.

On December 12, 1989, the district court entered a final judgment dismissing the petition for a writ of habeas corpus and lifting the stay of execution. Barnard timely filed a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e), which the district court denied. After Barnard filed a notice of appeal, the district court granted a certificate of probable cause and entered a stay of execution on February 7, 1990. This appeal followed.

On appeal, Barnard contends that the district court erred in rejecting his claims that (1) the Texas death sentencing statute prevented the jury in his case from considering and giving effect to his mitigating evidence in violation of the Sixth and Eighth Amendments to the United States Constitution; (2) the court's instruction on temporary insanity caused by intoxication prevented the jury from giving any mitigating consideration to this evidence unless Barnard proved that he was so intoxicated that he was insane at the time of the offense; (3) evidence of his good character, including evidence of his carpentry skills, work history, and familial responsibility and support, was not adequately treated within the special issues; and (4) Barnard received ineffective assistance of counsel. We consider each of these claims below.

II. ANALYSIS

A. Standard of review

In considering a federal habeas corpus petition presented by a petitioner in state custody, federal courts must accord a presumption of correctness to any state court factual findings. See 28 U.S.C. 2254(d). We review the district court's findings of fact for clear error, but decide any issues of law de novo. Humphrey v. Lynaugh, 861 F.2d 875, 876 (5th Cir.1988), cert. denied, 490 U.S. 1024, 109 S.Ct. 1755, 104 L.Ed.2d 191 (1989).

B. Penry claim

Barnard first contends that the Texas capital sentencing statute, as applied in his case, violated the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution by failing to provide a vehicle by which Barnard's jury could properly consider and give effect to the substantial mitigating evidence he presented at trial. Barnard argues that the Texas capital sentencing statute2 unconstitutionally limited the jury's consideration of two types of mitigating evidence that he presented at trial: (1) his head injury, evidence of permanent characteristics and disabilities stemming from his troubled childhood, and his drug and alcohol abuse; and (2) evidence of his good character, including evidence of his carpentry skills, work history, and familial responsibility and support. Barnard maintains that, under the narrow focus of the special issues, no means existed by which the jury could give meaningful expression to this evidence and vote for life as mandated by the Supreme Court in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

The district court refused to review the merits of Barnard's contention that the Texas death sentencing statute was unconstitutional as applied3 in his case, concluding that Barnard had procedurally defaulted this claim. In making this ruling, the district court observed that both the trial court and the Court of Criminal Appeals found on state habeas review that Barnard was barred under state law from complaining of the trial court's failure to give additional jury instructions on mitigating evidence because he failed to request such a special instruction.

The district court determined that the state habeas court unambiguously relied on the state procedural default doctrine in its dismissal, and that Barnard demonstrated neither good cause for his failure to comply with state court procedures nor actual prejudice resulting from the alleged constitutional violation.

Over two years have elapsed since the district court rested its decision on the procedural default doctrine. Since then, the Texas Court of Criminal Appeals has clarified the state's position on whether a habeas petitioner has defaulted on a Penry claim. Selvage v. Collins, 816 S.W.2d 390 (Tex.Crim.App.1991), explained that a Penry claim is preserved even if the petitioner failed to request an instruction on mitigating evidence or object to the instructions given at trial. Id. at 392. However, a petitioner cannot base a Penry claim on mitigating evidence that could have been, but was not, proffered at trial. May v. Collins, 904 F.2d 228, 232 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991); DeLuna v. Lynaugh, 890 F.2d 720, 722 (5th Cir.1989); see also Ex parte Goodman, 816 S.W.2d 383, 386 n. 6 (Tex.Crim.App.1991) (in dicta, refusing to consider arguments based on tactically withheld Penry evidence, unless the appellant makes a contemporaneous offer of proof or bill of exception detailing what mitigating evidence is being withheld). With these constraints in mind, we examine whether Barnard's challenge to the application of the Texas sentencing statute in his case warrants relief.

Although the Supreme Court has upheld the constitutionality of the Texas capital sentencing scheme, see Jurek v. Texas, 428 U.S. 262, 272, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976) (opinion of Stewart, Powell & Stevens, JJ.), it has found that under certain circumstances, the statutory special issues must be augmented by jury instructions to preserve the constitutionality of the statute's application. In Penry, the Supreme Court held that a Texas jury could not give effect to mitigating evidence of mental retardation and an abused childhood through the special issues absent instructions informing the jury that it could consider and give effect to this evidence by refusing to impose the death penalty. 492 U.S. at 328, 109 S.Ct. at 2951. The Court ordered resentencing in Penry's case because without such an instruction, "the jury was not provided with a vehicle for expressing its 'reasoned moral response' " to his mitigating evidence in its sentencing decision. Id.

In Graham v. Collins, 950 F.2d 1009 (5th Cir.1992) (en banc), petition for cert. filed Mar. 9, 1992 (No. 91-7580), this court recently construed Penry to indicate that special jury instructions are required only when the "major mitigating thrust of the evidence is beyond the scope of all the special issues." Id. at 1027. We determined that Graham's evidence of his youth as a mitigating factor found adequate expression through the second special issue. Graham reasoned that because youth is a transitory condition,

whatever is mitigating about youth tends to lend support to a "no" answer to the second special issue, and its tendency to do so is essentially proportional to the degree to which the jury concludes such factors were influential in the defendant's criminal conduct. The greater the role such attributes of youth are found to have played in the defendant's criminal conduct, the stronger the inference that, as his youth passes, he will no longer be a danger to society.

Id. at 1031. The majority distinguished evidence of transitory conditions, such as youth, from evidence of "uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own," such as mental retardation, organic brain damage and an abused childhood. Id. at 1029. We turn now to Barnard's contention that the mitigating evidence he presented at trial differs materially from the type of evidence found unproblematic in Graham and that, as a consequence, the lack of special jury instructions rendered his proceeding unconstitutional.

Barnard argues that because the evidence presented during his trial raised an issue with regard to his head injury and its effects, the jury could not have expressed the full mitigating force of this evidence within the special issues. At trial, Barnard testified that several months before he committed the crime, his son-in-law beat him in the head with a tire iron. Barnard's friend, Marie Farquhar,4 and his mother, Maude Barnard, testified to the apparent severity of the wounds resulting from the beating. Barnard's mother also stated that Barnard was unable to work for four or five months and that he was less helpful around the house after the beating. She further stated that since the beating, she thought he needed psychiatric help. On cross-examination, she also told of an occasion after the beating when she accompanied Barnard to a hospital so that he would get a psychiatric examination, recalling that he left the hospital the same day, apparently without receiving treatment.

Barnard did not introduce expert testimony relating to his psychological disorders during his capital trial.5 Nor does the record contain any affirmative evidence of brain damage. The evidence of the beating, without more, is insufficient to support a Penry claim. The evidence must be able to raise an inference "that the crime is attributable to the disability." Graham, 950 F.2d at 1033. Here, there is no evidence that the physical trauma from the blows caused Barnard to suffer from mental impairment, or that his criminal actions were attributable to mental impairment. Barnard cannot rely on his mother's inexpert speculation concerning Barnard's mental condition to demonstrate a Penry-type disability. A juror would be compelled to share this speculation to make such a finding. See Wilkerson v. Collins, 950 F.2d 1054, 1061 (5th Cir.1992) (refusing to consider claim based upon conjecture rather than proof). Therefore, Barnard's claim is without merit.

Barnard further contends that, in the absence of a special instruction, the jury was precluded from expressing the full mitigating potential of his evidence of a troubled childhood. Testimony during Barnard's trial revealed that his parents divorced when he was four years old and that he lived alone with his mother until he was thirteen. His father was absent from his life during this period. At age thirteen, Barnard was sent to live with his father, but had difficulties with him and eventually lived with an uncle. Barnard's mother testified that she had been in a mental hospital four times, but specified the approximate date of her institutionalization for only one occasion, which apparently occurred after Barnard was eighteen years old.6 Barnard did not offer any affirmative evidence to show that his mother received institutional care during his childhood. Nor did he attempt to show that his alcohol and drug use or any mental impairment or psychological problem was attributable to his childhood experiences.

We reject Barnard's attempt to portray this testimony as mitigation evidence of permanent characteristics and disabilities stemming from his troubled childhood. Although the Graham majority observed that a defendant who introduced evidence of the adverse effects of a troubled childhood might well raise a Penry issue, in this case, as in Graham, there was no evidence that these childhood experiences had any psychological effect on Barnard. Graham, 950 F.2d at 1033. Accordingly, we find no substantial evidence that Barnard's "criminal conduct was 'attributable to a disadvantaged background, or to emotional and mental problems[.]' " Id. (quoting Penry, 109 S.Ct. at 2947).

Nor are we convinced by Barnard's efforts to characterize the record as raising the issue of an addictive disorder. The scattered testimony recounting Barnard's evidently frequent episodes of heavy alcohol consumption, alcohol intoxication and marijuana use does not demonstrate that the episodes were attributable to a permanent handicap. Although the evidence showed that Barnard was intoxicated at the time of the offense, "voluntary intoxication is not the kind of 'uniquely severe permanent handicap[ ] with which the defendant was burdened through no fault of his own' that requires a special instruction to ensure that the mitigating effect of such evidence finds expression in the jury's sentencing decision." Cordova v. Collins, 953 F.2d 167, 170 (5th Cir.1992) (quoting Graham, 950 F.2d at 1029). A juror who concluded that Barnard suffered from alcoholism or drug addiction would have necessarily relied solely on speculation to reach that conclusion. Accordingly, Barnard cannot prevail on this claim. See Wilkerson, 950 F.2d at 1061.

Barnard alternatively argues that the jury instruction on his intoxication at the time of the crime prevented the jury from giving any mitigating consideration to this evidence unless Barnard proved that he was so intoxicated that he was insane at the time of the offense.7 This instruction, he contends, did not allow a juror who found that Barnard acted deliberately and was not temporarily insane at the time of the offense to give mitigating effect to Barnard's evidence of intoxication even though the juror also found that the intoxication diminished Barnard's capacity and militated in favor of a life sentence. Therefore, he maintains that the mitigating thrust of this evidence of intoxication extended beyond the special issues.

In reviewing Barnard's state habeas petition, the trial court determined that Barnard's failure to request a special instruction or to object to this instruction at trial established a procedural bar to consideration of this claim. The Court of Criminal Appeals denied Barnard state habeas relief based on this determination. The district court concluded that the state habeas court's reliance on the state procedural bar was unambiguous and thus precluded it from reaching the merits of this claim pursuant to Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).

We agree with the district court that the state procedural bar precludes our review of this claim. In Selvage, the Texas Court of Criminal Appeals held that Selvage's Penry claim was not procedurally barred under Texas law because it was "an assertion of a right not previously recognized." 816 S.W.2d at 391. This rationale does not pertain here. In contrast to Penry, Barnard does not contend that the Texas special issues prevented the jury from considering Barnard's evidence of voluntary intoxication; he asserts that the court's erroneous instruction prevented the jury from giving full mitigating effect to his evidence of voluntary intoxication. Since a jury can express the mitigating force of evidence of voluntary intoxication through the Texas special issues, Barnard's failure to object to the additional instruction on temporary insanity resulted in the state procedural default of this claim.8

In his final Penry claim, Barnard argues that evidence of his good character, including evidence of his carpentry skills, work history, and familial responsibility and support9 fell outside the scope of the second special issue. However, this court has concluded that evidence of good character does not require a special instruction under Penry. Graham, 950 F.2d at 1032. Since the principal mitigating thrust of good character evidence is to show that the defendant acted atypically in committing the capital crime, this evidence can find adequate expression under second special issue. Id. Specifically, the Graham majority observed that

[u]nlike Penry evidence, which can reduce culpability where it is inferred that the crime is attributable to the disability while other similar offenders have no such "excuse," good character evidence provides no variety of "excuse." Further, absent some unusual indication of an essentially permanent adverse change in character (e.g., brain damage), to the extent that the testimony is convincing that the defendant's general character is indeed good it will also, to essentially the same extent, be convincing that he will not continue to be a threat to society.

Id. at 1033 (emphasis in original). Barnard, however, maintains that, unlike the good character evidence offered in Graham, the mitigating potential of his good character evidence is not to show that Barnard does not have the capacity for future violence. Rather, he contends, the evidence shows that his life should be spared despite his need to be placed in a controlled environment.

To the extent that Barnard asserts that a capital sentencer must be able to express the mitigating potential of evidence unrelated to a defendant's culpability or capacity for rehabilitation, ample authority supports the contrary conclusion. See, e.g., Penry, 492 U.S. at 319, 109 S.Ct. at 2947 ("Underlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the defendant."); Tison v. Arizona, 481 U.S. 137, 149, 107 S.Ct. 1676, 1683, 95 L.Ed.2d 127 (1987) ("The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender."); Skipper v. South Carolina, 476 U.S. 1, 5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986) ("Consideration of a defendant's past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing[.]"). Further, Barnard portrays the qualitative effect of this mitigating evidence in a way that continues to bear on the question of Barnard's rehabilitative potential,10 which is adequately addressed within the second special issue. Thus, we find no merit to this contention.

C. Unconstitutionally vague terms

Barnard contends that the Texas capital sentencing statute was unconstitutionally applied to him because its operative terms are so vague and indefinite that they deprive the jury of meaningful guidance in its sentencing deliberations. Without clarifying instructions on terms such as "probability" and "deliberateness," he argues, the statute unduly restricts the scope of the mitigating evidence which the jury can consider. To support his contention, Barnard points out that in Penry, the Supreme Court expressed doubt about whether the jury could give effect to Penry's mitigating evidence of mental retardation and child abuse "[i]n the absence of jury instructions defining the term 'deliberately.' " 492 U.S. at 323, 109 S.Ct. at 2949.

This claim is without merit. Both the Texas Court of Criminal Appeals and this court have held that the common meaning of the term "deliberately" is sufficiently clear to allow the jury to decide the punishment phase issues. Ellis v. Lynaugh, 873 F.2d 830, 839 (5th Cir.), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 384 (1989). In Penry, the Court was concerned that the trial court did not direct the jury to consider Penry's mental retardation in a way that bore fully on his moral culpability. The Court observed that "Penry's mental retardation was relevant to the question whether he was capable of acting 'deliberately,' but it also 'had relevance to [his] moral culpability beyond the scope of the special verdict questio[n].' " 492 U.S. at 322, 109 S.Ct. at 2948 (quoting Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 2332, 101 L.Ed.2d 155) (1988) (alterations in original). Barnard has not presented any evidence that would require additional sentencing instructions pursuant to Penry. Thus, the doubt expressed in Penry does not apply to Barnard's case. See DeLuna, 890 F.2d at 722-23.

Moreover, Barnard fails to demonstrate that the jurors were confused about the meanings of the challenged terms "probability" and "society" as used in the second special punishment issue. In Jurek, the Supreme Court rejected the petitioner's contention that the second special issue was unconstitutionally vague. See 428 U.S. at 274-75, 96 S.Ct. at 2957-58 (opinion of Stewart, Powell & Stevens, JJ.); id. at 279, 96 S.Ct. at 2959 (White & Rehnquist, JJ. & Burger, C.J., concurring) ("the issues posed in the sentencing proceeding have a commonsense core of meaning and ... criminal juries should be capable of understanding them"). We conclude that these terms "have a plain meaning of sufficient content that the discretion left to the jury was no more than that inherent in the jury system itself." Milton v. Procunier, 744 F.2d 1091, 1096 (5th Cir.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985).

D. Ineffective assistance of counsel

Finally, Barnard argues that he was denied effective assistance of counsel in violation of the Sixth Amendment. Specifically, he points out that his trial counsel (1) failed to have a psychiatric expert evaluate Barnard; (2) failed to conduct an adequate examination into Barnard's family history; (3) failed to obtain a medical examination to determine whether Barnard suffered from brain damage; and (4) allowed Barnard to testify in his own defense at trial. These errors and omissions, Barnard contends, prejudiced his right to a fair trial.

We review an ineffective assistance of counsel claim under the two-prong standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Wilkerson, 950 F.2d at 1063. Under Strickland, a defendant must show

[f]irst ... that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversarial process that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. We determine the reasonableness of the challenged conduct by viewing the circumstances at the time of that conduct. Id. at 690, 104 S.Ct. at 2066. Further, "[w]e must strongly presume that trial counsel rendered adequate assistance and that the challenged conduct was the product of a reasoned trial strategy." Wilkerson, 950 F.2d at 1065 (citing Strickland).

Barnard fails to demonstrate that his counsel would have reason to believe that Barnard suffered from a mental defect at the time of the offense or trial. Thus, he cannot sustain the argument that his counsel was ineffective for failing to employ experts to explore the psychological, medical or physical origins of Barnard's mental condition. Likewise, he does not show that counsel's investigation into Barnard's family background was unreasonably deficient. Counsel elicited testimony from Barnard's mother, who favorably described some of Barnard's personal characteristics to the jury. Barnard also fails to provide factual support for the allegations of childhood neglect that he urges would have come to light had counsel conducted a more thorough investigation. As such, he fails to show that his counsel performed in a constitutionally deficient manner.

Moreover, Barnard does not demonstrate that his trial counsel's decision to waive Barnard's Fifth Amendment right not to testify constitutes ineffective assistance of counsel. Barnard argues that this waiver resulted in the extraction of incriminating testimony, some of which was elicited by defense counsel himself, concerning Barnard's participation in and preparation for the crime. However, as the district court observed, he has not demonstrated that trial counsel neglected to weigh the possible harm from potentially incriminating testimony against the need for Barnard to testify in favor of the defense theory of his case. Nor does Barnard show that but for this alleged error, the result of the proceeding would have been different. The jury already had considerable evidence before it to find that Barnard planned to participate and acted deliberately in committing the crime.

Since Barnard's allegations do not satisfy the Strickland test, we find no merit to this claim.11 In addition, we reject Barnard's assertion that he is entitled to an evidentiary hearing on the issue of ineffective assistance of counsel to make findings of fact as to whether counsel's decisions were grounded in a deliberate trial strategy. The reliance of the trial court and the federal district court on this rationale in denying relief derived from a legal presumption dictated by Strickland, see 466 U.S. at 690, 104 S.Ct. at 2065, not from any unsubstantiated speculation on the record. Because Barnard fails to present allegations sufficient to overcome this presumption, we conclude that he is not entitled to an evidentiary hearing. See Ellis, 873 F.2d at 840.12

III. CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the district court and VACATE the stay of execution.

*****

1

For a more detailed recitation of the facts, see Barnard v. State, 730 S.W.2d 703 (Tex.Crim.App.1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988)

2

Pursuant to the version of Texas Code of Criminal Procedure Article 37.071 in effect at the time of Barnard's sentencing, the trial court instructed the jury to consider the following special issues:

1

Was the conduct of the Defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased would result?

2

Is there a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society?

3

Was the conduct of the Defendant in killing the deceased unreasonable in response to the provocation, if any, by the deceased?

3

Barnard has abandoned his facial challenge to the Texas death penalty statute brought before the district court

4

Farquhar was also a licensed vocational nurse

5

Barnard first filed a psychological evaluation, prepared by a psychologist in October 1988, with his petition for habeas corpus relief in the district court. The report reveals that, in addition to the attack with the tire iron, Barnard suffered a serious head injury from a car accident when he was seventeen years old. The report also indicates that Barnard suffers from extreme paranoia and delusional ideation and that, since his incarceration, he has consistently been diagnosed as having a paranoid disorder with possible schizophrenia. The psychologist was unable to conclude that Barnard was afflicted with paranoid delusions at the time he committed the capital offense. Because Barnard did not present this evidence at trial, we cannot consider it now. See May v. Collins, 904 F.2d 228, 232 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991)

6

Maude Barnard noted that she retired from her job when she had a nervous breakdown in the 1960s. Barnard was eighteen years old in 1961

7

During the punishment phase of Barnard's trial, the court gave the following instructions to the jury:

You are instructed that under our law neither intoxication nor temporary insanity of mind caused by intoxication shall constitute any defense to the commission of crime. Evidence of temporary insanity caused by intoxication should be considered in mitigation of the penalty attached to the offense.

By the term "intoxication" as used herein is meant disturbance of mental or physical capacity resulting from the introduction of any substance into the body.

By the term "insanity" as used herein, is meant, that as a result of the intoxication the defendant either did not know that his conduct was wrong or he was incapable of conforming his conduct to the requirements of the law he allegedly violated.

Now if you find from the evidence that the defendant, Harold Amos Barnard, Jr., at the time of the commission of the offense for which he is on trial, was laboring under temporary insanity as above defined, produced by voluntary intoxication, then you may take such temporary insanity into consideration in mitigation of the penalty which you attach to the offense, if any.

8

At the time of Barnard's trial, it was already well established that a capital sentencing statute must allow the sentencer to consider "as a mitigating factor any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (emphasis omitted); see also Jurek, 428 U.S. at 271, 96 S.Ct. at 2956 (opinion of Stewart, Powell & Stevens, JJ.)

9

Three former employers testified for Barnard and stated that he was a competent worker and that they felt no fear for themselves or their families when he was present. Barnard also introduced evidence that he had worked to receive a General Equivalency Diploma, and that he spent time with his children and supported his family. Barnard's mother testified about how he helped to support her financially and around the house

10

Barnard urges that the evidence demonstrates that he could be safely employed within a prison setting in a manner that benefitted society

11

Barnard makes other conclusory allegations that his counsel rendered ineffective assistance. In the absence of a specific showing of how these alleged errors and omissions were constitutionally deficient, and how they prejudiced his right to a fair trial, we conclude that there is no merit to these additional contentions. See Knighton v. Maggio, 740 F.2d 1344, 1349 (5th Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 241 (1984)

12

In his supplemental brief, Barnard argues for the first time that the prosecution's closing argument violated his constitutional rights because it erroneously permitted the jury to presume from the mere act of shooting that Barnard intended to kill the victim. As Barnard did not present this argument in his opening brief, we conclude that it is waived. See United States v. Miller, 952 F.2d 866, 874 (5th Cir.1992); United States v. Mejia, 844 F.2d 209, 214 n. 1 (5th Cir.1988). Moreover, because Barnard did not raise this claim either before the trial court on state habeas review, or before the federal district court, we cannot consider the claim here

 
 

13 F.3d 871

Harold Amos Barnard, Jr., Petitioner-appellant,
v.
James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-appellee

United States Court of Appeals, Fifth Circuit.

Jan. 31, 1994

Appeal from the United States District Court for the Southern District of Texas.

Before KING, JOLLY, and SMITH, Circuit Judges.

KING, Circuit Judge:

Harold Amos Barnard, Jr., a death-row inmate in the Texas Department of Criminal Justice (TDCJ), Institutional Division, filed his second petition for federal habeas corpus relief, pursuant to 28 U.S.C. Sec. 2254, in the United States District Court for the Southern District of Texas on January 27, 1994. Barnard is scheduled to be executed after midnight on February 2, 1994. Barnard requested that the district court stay his execution, hold an evidentiary hearing on the issue of his competency, and issue a writ of habeas corpus vacating his death sentence. Barnard also requested that the district court appoint counsel for him pursuant to 21 U.S.C. Sec. 848(q)(4)(B).

On January 28, 1994, the district court denied Barnard all relief and a certificate of probable cause (CPC). Barnard then filed a notice of appeal to this court, along with an application for a CPC, a motion to stay his execution, and a renewed motion for appointment of counsel. Although the district court denied relief on the ground that Barnard had abused the writ, we do not reach this question in our consideration of his entitlement to a CPC and a stay of execution, but instead hold that Barnard has not made a substantial showing of the denial of a federal right. Thus, we deny his application for a CPC and his motion to stay his execution. We reverse the district court's denial of counsel, and in the light of Barnard's exigent circumstances, we grant his motion to appoint counsel.

A jury convicted Barnard of capital murder on April 1, 1981, for the killing of sixteen-year-old Tuan Nguyen during a robbery of a convenience store in Galveston, Texas, on June 6, 1980.1 After a punishment hearing, the jury affirmatively answered the three special issues submitted pursuant to Texas law, thereby requiring that Barnard be sentenced to death.

On April 8, 1987, the Texas Court of Criminal Appeals affirmed Barnard's conviction, and on July 17, 1987, the state trial court pronounced Barnard's death sentence and set his execution for September 23, 1987. On February 29, 1988, the Supreme Court denied Barnard's petition for writ of certiorari. See Barnard v. State, 730 S.W.2d 703 (Tex.Crim.App.1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988).

The Texas Court of Criminal Appeals denied Barnard's first petition for state habeas corpus relief on January 6, 1989, and Barnard's execution was rescheduled for March 14, 1989. On February 21, 1989, Barnard filed a petition for federal habeas corpus relief and an application for stay of execution in the United States District Court for the Southern District of Texas. The district court stayed the execution pending its consideration of Barnard's petition.

On December 12, 1989, the district court entered a final judgment dismissing the petition for a writ of habeas corpus and lifting the stay of execution. After Barnard filed a notice of appeal, the district court granted a CPC and entered a stay of execution on February 7, 1990.

On appeal, Barnard contended that the district court erred in rejecting his claims that (1) the Texas death sentencing statute prevented the jury in his case from considering and giving effect to his mitigating evidence in violation of the Sixth and Eighth Amendments to the United States Constitution under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); (2) the state trial court's instruction on temporary insanity caused by intoxication prevented the jury from giving any mitigating consideration to this evidence unless Barnard proved that he was so intoxicated that he was insane at the time of the offense; (3) evidence of his good character--including evidence of his carpentry skills, work history, and familial responsibility and support--was not adequately treated within the special issues; and (4) Barnard had received ineffective assistance of counsel. Finding no error, a panel of this court affirmed the district court's denial of habeas relief and vacated the stay of execution. Barnard v. Collins, 958 F.2d 634, 643 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993). Rehearing was denied on May 22, 1992. Barnard v. Collins, 964 F.2d 1145 (5th Cir.1992). The state trial court rescheduled Barnard's execution for March 16, 1993.

The Supreme Court denied certiorari review of Barnard's petition for federal habeas relief on January 11, 1993. Barnard v. Collins, --- U.S. ----, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993). On March 8, 1993, the Supreme Court also denied Barnard's application for a stay of execution and petition for rehearing, in which he reargued his Penry claim in light of the Court's decision in Graham v. Collins, --- U.S. ----, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993).

On March 10, 1993--six days before his then current execution date and nearly five years after the execution date which was set after Barnard's conviction became final--Barnard filed his second petition for state habeas relief, in which he asserted that he was incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and that the Texas special issues did not allow the jury to reflect adequately the mitigation value of his proffered evidence. He also argued that Article 8.04(b) of the Texas Penal Code, which the judge read to the jury as an instruction at the sentencing phase of the trial, was unconstitutional both on its face and as applied. On March 15, 1993, the state court issued its findings and conclusions, recommending that habeas relief be denied. Later that same day, the Texas Court of Criminal Appeals granted Barnard a stay of execution.

On May 11, 1993, the Texas Court of Criminal Appeals ordered the state trial court to hold an evidentiary hearing on Barnard's claim that he was incompetent to be executed. That hearing was held on July 22, 1993. The trial court then issued its findings and conclusions and recommended that Barnard's petition for habeas relief be denied on September 29, 1993. On November 8, 1993, the Texas Court of Criminal Appeals adopted the trial court's findings and conclusions and denied Barnard's petition for habeas relief. Barnard's execution date was then rescheduled for February 2, 1994.

On January 27, 1994, Barnard filed his second habeas petition in federal district court. He requested that the district court stay his execution, hold an evidentiary hearing to determine whether Barnard was competent to be executed, and issue a writ of habeas corpus vacating his death sentence. The attorney who had filed Barnard's second federal habeas petition also requested that the district court appoint him to represent Barnard pursuant to 21 U.S.C. Sec. 848(q)(4)(B). On January 28, 1994, the district court denied Barnard all relief, denied Barnard a CPC, and denied his attorney's motion for appointment of counsel. Barnard then filed a notice of appeal with this court, along with an application for a CPC, a motion to stay his execution, and a renewed motion for appointment of counsel.

In response to Barnard's petition, the State moved to dismiss the petition as an abuse of the writ, pursuant to Rule 9(b), Rules Governing Section 2254 Cases. Under Rule 9(b), a second or successive petition in which new grounds for relief are alleged may be dismissed if the petitioner's "reasonable and diligent investigation" would have resulted in his presenting these grounds in a previous habeas petition. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). Once abuse of the writ has been pleaded by the State, raised by the district court sua sponte or raised as required in Hawkins v. Lynaugh, 862 F.2d 487, 489 (5th Cir.), stay granted, 488 U.S. 989, 109 S.Ct. 569, 102 L.Ed.2d 593 (1988), vacated and remanded on other grounds, 494 U.S. 1013, 110 S.Ct. 1313, 108 L.Ed.2d 489 (1990), the petitioner must show by a preponderance of the evidence that he has not abused the writ or otherwise violated Rule 9(b). Andre v. Guste, 850 F.2d 259 (5th Cir.1988); Johnson v. McCotter, 803 F.2d 830, 832 (5th Cir.1986).

According to the district court, it was clear from the evidence put forth by Barnard that he could not meet this burden. The district court found that although there was some evidence that Barnard's condition had persistently worsened over the years, it was abundantly clear that the question of his competency to be executed was extant at the time of his first habeas petition because "Barnard's habeas counsel have known and asserted for years that Barnard's sanity is questionable." Thus, because the district court determined that Barnard failed to demonstrate good cause for his failure to raise the issue of his competency in his earlier writ, the court dismissed Barnard's petition on grounds that he had abused the writ.

We need not reach the question of whether Barnard abused the writ for purposes of his entitlement to habeas relief on the merits. Even if we assume arguendo that Barnard did not abuse the writ, we find that Barnard has not made a substantial showing of a denial of a federal right, and thus we deny his application for a CPC and his motion to stay his execution.

Standard of Review

This court reviews an application for a CPC using the same standard as that used by the district court in the first instance. That is, we will grant a CPC to appeal only if the applicant can make a substantial showing of a denial of a federal right. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983); Drew v. Collins, 5 F.3d 93, 95 (5th Cir.1993), petition for cert. filed (Jan. 5, 1994). This standard does not require the applicant to show that he would prevail on the merits, but it does require him to show that the issues he presents are debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at 3395 n. 4; Drew, 5 F.3d at 95. The same standard essentially applies to an application for a stay of execution. Drew, 5 F.3d at 95 (citing Delo v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990) ("A stay of execution pending disposition of a second or successive federal habeas petition should be granted only when there are 'substantial grounds upon which relief might be granted.' " (quoting Barefoot, 463 U.S. at 895, 103 S.Ct. at 3395))).

Discussion

Barnard argues that his application for CPC should be granted because he is presently incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). He asserts that the state trial court's finding that Barnard was competent to be executed, issued after an evidentiary hearing held on July 22, 1993, is not entitled to be given a "presumption of correctness" in federal court because the state court's treatment of the competency issue was not "full and fair."

Section 2254(d) directs federal habeas courts to presume the correctness of a state court

determination after a hearing on the merits of a factual issue ... unless the applicant shall otherwise establish or it shall otherwise appear, or the respondent shall admit

. . . . .

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; ...

(8) or unless ... the Federal court on a consideration of such part of the record as a whole [on which the factfinding was based] concluded that such factual determination is not fairly supported by the record.

28 U.S.C. Sec. 2254(d); see Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981). A state court's conclusion regarding a petitioner's competency to be executed is entitled to such a presumption. Garrett v. Collins, 951 F.2d 57, 59 (5th Cir.1992); see Ford, 477 U.S. at 410-411, 106 S.Ct. at 2602-2603.

The state habeas court found, after a full evidentiary hearing in which the court was able to review both live and affidavit testimony, that Barnard was competent to be executed under the Ford standard, i.e., that a prisoner must understand the fact of his impending execution and the reason for it.2 During the hearing, at which Barnard was present but did not testify, Barnard presented, in addition to the testimony of his former attorney, the live medical testimony of Dr. Philip Murphy, a psychologist, and Dr. Allen Childs, a psychiatrist, both of whom had recently interviewed Barnard.3 They agreed that Barnard suffers from delusions that he is being persecuted by various minority groups. In rebuttal, the State presented the live testimony of Dr. Edward B. Gripon, who had been ordered by the court to examine Barnard and who testified that although Barnard suffered serious delusions, Barnard understood the fact of his impending execution and the reason for it. In one of its factual findings, the state court stated that

[b]ased on the reports and evaluations and testimony of Applicant's and the Court's mental health experts, Texas Department of Criminal Justice medical records, and the sworn statements of TDCJ personnel, the Court finds that Applicant comprehends the nature, pendency, and purpose of his execution. Applicant knows that he was found guilty of killing a young boy in a robbery in Galveston County and that his pending execution was because he had been found guilty of that crime. He knew of the date of his scheduled execution and that it would be lethal injection by use of an intravenous injection. Applicants' experts do not establish that he is unaware of the fact of or the reason for his impending execution, but rather that his perception of the reason for his conviction and pending execution is at times distorted by a delusional system in which he attributes anything negative that happens to him to a conspiracy of Asians, Jews, Blacks, homosexuals, and the Mafia (emphasis added).

The state court thus found that Barnard knew that he was going to be executed and why he was going to be executed--precisely the finding required by the Ford standard of competency.4

Barnard contends that this finding should not be given a presumption of correctness under Sec. 2254(d) because the trial court's hearing could not possibly have been "full and fair" if the trial court ignored the testimony of seven impartial witnesses in favor of one court-appointed witness. However, we agree with the district court that an unexpected outcome does not automatically render the state procedure unfair--especially when Barnard was afforded a full-blown evidentiary hearing. We thus find meritless Barnard's contention that Texas did not afford him a "full and fair" proceeding.

Barnard also argues that the state court's finding of competence should not be given a presumption of correctness because such a determination is not "fairly supported by the record." This argument, too, is without merit. Although the state court had before it various affidavits and doctors' reports on Barnard's competency which Barnard had filed, the court found that only the reports of Drs. Murphy and Childs--who gave live testimony for Barnard at the hearing--related to Barnard's current diagnosis. Dr. Gripon, who testified for the State and who had recently reviewed Barnard's medical records and interviewed Barnard, also gave live testimony related to Barnard's current diagnosis.

This court has made it clear that "deference to a state court's findings is particularly important 'where a federal court makes its determinations based on the identical record that was considered by the state appellate court.' " Self v. Collins, 973 F.2d 1198, 1213 (5th Cir.1992) (quoting Sumner, 449 U.S. at 547, 101 S.Ct. at 769), cert. denied, --- U.S. ----, 113 S.Ct. 1613, 123 L.Ed.2d 173 (1993). Section 2254(d) " 'gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court' " or to disagree with the weight the state court gave to the testimony of those witnesses whose demeanor the federal habeas court did not observe. Id. at 1214 (quoting Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983)).

Barnard also argues that the state court's finding of competency should not be given Sec. 2254(d) deference because such a finding is a mixed question of law and fact and thus not subject to a presumption of correctness under Sec. 2254(d). The cases to which Barnard cites for support of this argument, however, concern the issue of competency to stand trial and not the issue of competency to be executed. This court has previously determined that a state court's finding of competency to be executed is entitled to a presumption of correctness under Sec. 2254(d). See Garrett, 951 F.2d at 59; see also Ford, 477 U.S. at 410-11, 106 S.Ct. at 2602 (explaining that a federal habeas court is required to hold an evidentiary hearing on the issue of the petitioner's competency to be executed if the petitioner shows that one of the statutory exceptions to Sec. 2254(d) is applicable in his specific case).

Even if we were to conclude, however, that competency to be executed is a mixed question of law and fact, the pure factfindings that underlie the state court's determination that Barnard is competent to be executed are entitled to a presumption of correctness, and based on those factfindings, we would reach the same legal conclusion.

For the foregoing reasons, we cannot determine that Barnard has made a substantial showing of a denial of a federal right. Accordingly, we deny his application for a CPC and his motion to stay his execution.5

Barnard also argues that the district court erred in denying his motion to have counsel appointed for him, pursuant to 21 U.S.C. Sec. 848(q)(4)(B).6 Although we did not address the question whether Barnard abused the writ for purposes of his entitlement to habeas relief on the merits, we address the question of abuse of the writ here in relation to the district court's denial of counsel's motion to be appointed under Sec. 848(q)(4)(B).

The district court dismissed Barnard's petition for abuse of the writ because the court determined that it was "abundantly clear" that the question of Barnard's sanity was extant at the time of the filing of his first habeas petition. Nonetheless, we note that the issue of Barnard's sanity was not urged at trial (Barnard himself testified at trial) or on direct appeal to the Texas Court of Criminal Appeals, except as it was incident to his claims relating to voluntary intoxication. We also note that more than five years has transpired since Barnard's first scheduled execution date after his conviction became final and that by the district court's own admission, there is evidence in the record that Barnard's condition has persistently worsened over the years.

Further, Texas employs its own abuse of the writ doctrine, which requires in certain instances that a petitioner show "good cause" why claims urged in a second or successive petition were not urged earlier or face dismissal of those claims. See TEX.CODE CRIM.P. art. 11.07 (Vernon 1977 & Supp.1993); Ex parte Emmons, 660 S.W.2d 106, 110 (Tex.Crim.App.1983); Ex parte Carr, 511 S.W.2d 523, 525-26 (Tex.Crim.App.1974).

Although the showing of "good cause" which Texas requires may well not be the same as the showing of "cause and prejudice" required in federal cases, we find it relevant that abuse of the writ was not raised at the state level with respect to Barnard's claim of incompetency to be executed in his second state habeas petition and that the Texas Court of Criminal Appeals stayed Barnard's execution on the eve of the set execution date and mandated an evidentiary hearing on the issue of competency.

Moreover, our research indicates no reported decision in which a federal circuit court or the Supreme Court has denied relief of a petitioner's competency-to-be-executed claim on grounds of abuse of the writ. Assuming without deciding that the abuse of the writ doctrine is nonetheless applicable to a petition for federal habeas relief premised on a Ford claim, the district court's determination that Barnard's claim constituted an abuse of the writ because he could not show "cause and prejudice" for his failure to raise this claim in his earlier petition seems premature in the absence of an evidentiary hearing or other appropriate proceeding to determine exactly when Barnard's counsel could have discovered through reasonable diligence and investigation that Barnard was incompetent to be executed.7

Because the determination of Barnard's competency to be executed is a fact-intensive inquiry, the point at which Barnard's counsel should have initiated that inquiry is equally fact-intensive. Although after a hearing, the district court might be in a position to conclude that Barnard's competency claim should have been raised in his first round of state and federal habeas petitions (initiated in October 1988), we cannot say, absent a more complete factual development, that this is true.

With the foregoing discussion in mind, we believe that the district court was incorrect in denying counsel's motion for appointment under 21 U.S.C. Sec. 848(q)(4)(B). On its face, Sec. 848(q)(4)(B) does not condition the appointment of counsel on the substantiality or nonfrivolousness of petitioner's habeas claims.8 Compare 21 U.S.C. Sec. 848(q)(4)(B) with 28 U.S.C. Sec. 1915(d) ("The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.").

Even if judicial interpretation of Sec. 848(q)(4)(B) may later condition the appointment of counsel on some level of substantiality or nonfrivolousness in a petitioner's habeas claims, we cannot say that in the instant case, without the benefit of a hearing on the subject of whether counsel should have raised earlier the matter of his competency to be executed, Barnard's competency claim was such that the district court should have denied counsel's motion for appointment under Sec. 848(q)(4)(B). The district court therefore erred in denying counsel's motion on abuse of the writ grounds. Counsel has a similar motion pending in this court, and in view of the shortness of time remaining before his execution, we grant the motion.

The district court will be required to hold a hearing at some future date to determine whether and in what amount fees are to be awarded Barnard's appointed counsel. As the district court is already aware, counsel waited more than ten weeks from the time the Court of Criminal Appeals denied Barnard relief on his second state habeas petition to file a second federal habeas petition and a motion to be appointed with the district court--only a few days before Barnard's scheduled execution.

At the hearing, the district court should determine whether counsel, as an officer of the court, had good cause for delay in filing Barnard's second habeas petition and if not, whether the amount of fees to which counsel would otherwise be entitled should be reduced as a sanction. See Thomas v. Capital Security Servs., Inc., 836 F.2d 866, 878 (5th Cir.1988) (en banc) ("[T]he basic principle governing the choice of sanctions is that the least severe sanction adequate to serve the purpose should be imposed.").

For the foregoing reasons, we DENY Barnard's application for a CPC and his motion for stay of execution. We REVERSE that portion of the district court's order denying appointment of counsel under Sec. 848(q)(4)(B). We grant the motion for appointment of counsel under Sec. 848(q)(4)(B) and Barnard's application for in forma pauperis status.

*****

1

A more detailed recitation of the facts can be found in Barnard v. State, 730 S.W.2d 703 (Tex.Crim.App.1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988)

2

This court has determined that the plurality opinion in Ford was made a majority opinion by the concurring opinion of Justice Powell, whose enunciated standard for competency to be executed was that a person know the fact of his impending execution and the reason for it. Lowenfield v. Butler, 843 F.2d 183, 187 (5th Cir.1988). Accordingly, this court has adopted the standard as enunciated by Justice Powell as the Ford standard. See, e.g., Garrett v. Collins, 951 F.2d 57 (5th Cir.1992); Lowenfield, 843 F.2d at 187

3

Although Barnard had also submitted other medical reports and affidavits to the state trial court, the court found that only the reports of Drs. Murphy and Childs related to a current diagnosis of Barnard

4

We note that Barnard's reliance on the Supreme Court's decision in Godinez v. Moran, --- U.S. ----, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), for the proposition that the standard for a prisoner's competency to be executed should include an "assistance prong" is misplaced. In Godinez, the Supreme Court held that the competency standard in the context of standing trial or in the context of waiving one's right to counsel or pleading guilty were the same: that a defendant have a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him. Id. at ----, 113 S.Ct. at 2686. The Godinez Court did not, however, mandate the addition of an "assistance prong" to the standard for determining whether a person was competent to be executed

5

We note that the district court ordered that the parties file no further pleadings in the district court on the issues raised by Barnard's second habeas petition and associated filings, "including motions to reconsider and the like." The Federal Rules of Civil Procedure give litigants the right to file certain post-judgment motions, and we think it ill-advised to issue such a directive as a routine matter

6

Although a CPC is required in order to appeal the denial of habeas corpus relief, there is no such requirement in order to appeal the denial of the appointment of counsel under Sec. 848(q)(4)(B). See Moreno v. Collins, No. 94-50026, slip op. at 3 n. 1 (5th Cir.1994)

7

In McCleskey v. Zant, the Supreme Court applied the "cause and prejudice" analysis it had adopted for cases of procedural default to an abuse of the writ inquiry. 111 S.Ct. at 1470. Thus, the Court determined that to excuse his failure to raise a claim in a previous habeas petition, the petitioner had to show cause for not raising his claim earlier or face dismissal of his petition for abuse of the writ. Id. "The requirement of cause in the abuse of the writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition." Id. (emphasis added). The Court also stated that "if petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim." Id

8

Section 848(q)(4)(B) provides in pertinent part that

[i]n 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....

 

 

 
 
 
 
home last updates contact