Richard v. Cockrell ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 27, 2003
Charles R. Fulbruge III
_______________________ Clerk
No. 03-20125
_______________________
MICHAEL WAYNE RICHARD,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
________________________________________________________ _____
Appeal from the United States District Court
for the Southern District of Texas
(02-CV-469)
Before JONES, STEWART, and DENNIS, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Michael Wayne Richard (Richard) was convicted of capital
murder and sentenced to death. Richard seeks a certificate of
appealability (COA) on two claims to challenge the district court’s
denial of his 28 U.S.C. § 2254 petition for habeas corpus relief.
We deny a COA on his claims.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I. BACKGROUND
Richard was convicted in Texas state court for fatally
shooting Marguerite Lucille Dixon in the course of a burglary. The
Texas Court of Criminal Appeals reversed the conviction for failure
to comply with Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106
L. Ed. 2d 256 (1989). On retrial, Richard was again sentenced to
death for capital murder; the Texas Court of Criminal Appeals
affirmed Richard’s conviction and denied him habeas corpus relief.
The United States Supreme Court denied Richard’s petition for writ
of certiorari. In February 2002, Richard filed a federal petition
for writ of habeas corpus. The district court denied the petition
and refused to issue a COA. Richard asks this Court to grant a COA
on two claims; each requested COA is denied.
II. DISCUSSION
Richard’s 28 U.S.C. § 2254 habeas petition, filed in
February 2002, is subject to the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). See Penry v. Johnson, 532 U.S. 782,
792, 121 S. Ct. 1910, 1918, 150 L. Ed. 2d 9, 22 (2001). Richard
must obtain a COA before he can appeal the district court’s denial
of habeas relief. 28 U.S.C. § 2253(c)(1); Slack v. McDaniel, 529
U.S. 473, 478, 120 S. Ct. 1595, 1600, 146 L. Ed. 2d 542, 551
(2000).
To obtain a COA, Richard must make a “substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
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Slack, 529 U.S. at 483, 120 S. Ct. at 1603, 146 L. Ed. 2d at 554.
When a district court rejects a constitutional claim on the merits,
a COA will be granted only if the applicant “demonstrate[s] that
reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Miller-El v.
Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 1040, 154 L. Ed. 2d 931,
950-51 (2003) (quoting Slack, 529 U.S. at 484). When the denial of
relief is based on procedural grounds, Slack provides a two-prong
test for determining whether a COA should issue: the applicant must
show (1) that “jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional
right” and (2) that “jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.”
Slack, 529 U.S. at 484. Each prong of the test is part of a
threshold inquiry, and a court may dispose of the application by
resolving the issue whose answer is more apparent from the record
and arguments. Id. at 485.
A. Richard’s appointed counsel
Richard argues that he was denied the right to counsel
and due process under the Sixth and Fourteenth Amendments when the
state trial court removed his court-appointed second-chair
attorney, Stephen Taylor, and appointed Christopher Goldsmith to
represent Richard. The district court concluded that the
nonretroactivity rule of Teague v. Lane, 489 U.S. 288, 109 S. Ct.
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1060, 103 L. Ed. 2d 334 (1989), barred Richard’s claim, and that,
in any event, his claim was meritless. Because reasonable jurists
would debate neither the district court’s Teague ruling nor the
district court’s assessment of Richard’s constitutional claim, we
deny a COA on this claim.
Richard argues that under Cuyler v. Sullivan, 446 U.S.
335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), and Wheat v. United
States, 486 U.S. 153, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988), a
court may not interfere with an indigent defendant’s right to
“counsel of his choice” absent a conflict of interest or serious
potential for a conflict. This court has “repeatedly held that the
right to counsel guaranteed by the Sixth Amendment does not include
the right to counsel of one’s choice.” United States v. Breeland,
53 F.3d 100, 106 n.11 (5th Cir. 1995). In Yohey v. Collins, 985
F.2d 222 (5th Cir. 1993), for example, when a Texas trial court,
against Yohey’s wishes, replaced his counsel with another attorney,
this court held that the “right to counsel guaranteed by the Sixth
Amendment does not include the right to counsel of Yohey’s choice.”
Id. at 228.
Here, Richard does not complain of the adequacy of his
ultimate representation. He simply argues that an indigent
defendant has a right to appointed “counsel of choice.” Reasonable
jurists would not debate the district court’s conclusion that this
rule was not “dictated by precedent existing at the time
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[Richard’s] conviction became final” Teague, 489 U.S. at 301, and
therefore cannot serve as a basis for habeas relief.
The district court also concluded that even if the rule
Richard seeks were not barred by Teague, any error in this case
would be harmless because it did not result in “actual prejudice.”
Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L.
Ed. 2d 353 (1993) (concluding that “habeas petitioners may obtain
plenary review of their constitutional claims, but they are not
entitled to habeas relief based on trial error unless they can
establish that it resulted in ‘actual prejudice.’”). Richard does
not contend that Goldsmith’s performance was in any way deficient.
Because Richard received competent representation, jurists of
reason would not find debatable the district court’s conclusion
that neither Richard’s Sixth nor Fourteenth Amendment rights were
violated.
B. Opportunity to inform the jury of parole eligibility and to
explain or deny certain statements made at trial
Richard argues that he was denied the effective
assistance of counsel and due process guaranteed by the Sixth and
Fourteenth Amendments because he was not allowed to inform the jury
of Texas law governing parole ineligibility and because “he was
unable to explain or deny” certain statements made at trial
concerning the future dangerousness of prisoners released from
death row. Because jurists of reason would not debate the district
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court’s conclusion that Richard’s arguments are meritless and
barred by Teague, we deny a COA.
In Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct.
2187, 129 L. Ed. 2d 133 (1994), the Supreme Court held that at the
time of death penalty deliberations, the jury should be informed
that a defendant is ineligible for parole. This court “has
repeatedly refused to extend the rule in Simmons beyond those
situations in which a capital murder defendant is statutorily
ineligible for parole.” Green v. Johnson, 160 F.3d 1029, 1045 (5th
Cir. 1998). Simmons does not apply to the present case because if
Richard received a life sentence, he would be eligible for parole
after he served a minimum of 20 years in prison.
Richard’s reliance on Skipper v. South Carolina, 476 U.S.
1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986), and Gardner v. Florida,
430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977), does not
support his argument. Skipper held that evidence of a defendant’s
good behavior in prison should be admitted during the punishment
phase of a capital sentencing hearing as relevant mitigating
evidence, 476 U.S. at 8, and Gardner held that a death sentence
could not constitutionally be based on portions of a presentence
investigation report that were not disclosed to counsel for the
parties, Gardner, 430 U.S. at 351. Richard relies on these cases
to argue that his due process rights were violated when he was
unable to explain or deny certain statements made during trial.
Specifically, he complains of testimony elicited by the State on
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cross-examination of a professor at the Criminal Justice Center at
Sam Houston State University that at least one former death row
inmate released from prison killed a person in free society and of
the prosecutor’s reiteration of that statement during the State’s
punishment argument.
Simmons involves application of the principles of Skipper
and Gardner to the South Carolina sentencing scheme, Simmons, 512
U.S. at 164-65, but this court has repeatedly distinguished the
Texas sentencing scheme. An opportunity to explain or deny
statements with information regarding parole eligibility is
“required only where state law provides for life imprisonment
without possibility of parole as an alternative to the death
penalty.” Woods v. Cockrell, 307 F.3d 353, 361 (5th Cir. 2002).
Although this issue is easily disposed of on the merits,
Richard is also not entitled to a COA because reasonable jurists
would not debate that Richard’s interpretation of Simmons, Skipper,
and Gardner would constitute a “new rule” of constitutional law
barred by Teague. See Wheat v. Johnson, 238 F.3d 357, 361 (5th
Cir. 2001).
III. CONCLUSION
For the foregoing reasons, we deny Richard’s request for
a COA on both claims.
COA DENIED.
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