Delk v. Johnson ( 2001 )


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  •                   UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    ____________________
    No. 00-41121
    ____________________
    MONTY ALLEN DELK,
    Petitioner-Appellant,
    versus
    GARY L. JOHNSON, DIRECTOR, TEXAS
    DEPARTMENT OF CRIMINAL JUSTICE,
    INSTITUTIONAL DIVISION,
    Respondent-Appellee.
    ____________________________________________________________
    Appeal from the United States District Court
    for the Eastern District of Texas
    (1:98-CV-1583)
    ____________________________________________________________
    August 13, 2001
    Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
    PER CURIAM:*
    Monty Allen Delk, convicted for capital murder and sentenced
    to death, seeks a certificate of appealability to appeal the denial
    of federal habeas relief.     DENIED.
    I.
    In 1988, a Texas jury convicted Delk for capital murder.   The
    evidence at trial was: in November 1986, Delk contacted the victim
    in Texas about purchasing an automobile advertised for sale in a
    *
    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    this opinion should not be published and is not precedent except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.
    newspaper; after the victim met Delk with the vehicle on 29
    November, the victim’s wife saw the victim and Delk in the vehicle,
    with Delk driving it; a few hours later, the victim was discovered,
    with a fatal shotgun wound; Delk was arrested on 2 December, after
    a police officer observed the victim’s vehicle at a house in
    Louisiana where Delk was located; included among the items in
    Delk’s possession were a copy of the newspaper advertisement, a
    sawed-off shotgun, the victim’s car keys, and a photograph of the
    victim’s wife, which the victim had carried in his wallet.            Delk v.
    State, 
    855 S.W.2d 700
    , 702-03 (Tex. Crim. App. 1993).
    At the penalty phase, the State’s evidence included Delk’s
    estranged   wife,   Tina   Delk,    and   her    brother,   Richard     Frye,
    testifying Delk had previously contemplated committing similar
    crimes, and had told them he had killed a man in Florida; and
    Delk’s mother-in-law, his wife’s former employer, and two of his
    former co-workers testifying Delk had threatened them. 
    Id. at 708.
    Based on the jury’s affirmative answers to the special issues
    regarding   deliberateness    and    future     dangerousness,   Delk    was
    sentenced to death.   
    Id. at 702.
       On direct appeal, the Texas Court
    of Criminal Appeals affirmed the conviction and sentence.             
    Id. at 712.
    The Supreme Court denied certiorari.         Delk v. Texas, 
    510 U.S. 982
    (1993).
    Delk sought state habeas relief in 1997.           After conducting
    hearings that September and November, the trial court, in February
    2
    1998, recommended denial of relief. Ex parte Delk, No. 19277-A (3d
    Jud. Dist. Ct., Anderson County, Tex. 3 Feb. 1998) (unpublished).
    That April, the Court of Criminal Appeals denied relief without a
    written order.   Ex parte Delk, No. 36,617-01 (Tex. Crim. App. 15
    Apr. 1998).
    That August, Delk sought federal habeas relief, raising 21
    issues.   Relief was denied in March 2000.
    Delk sought a certificate of appealability (COA) from the
    district court as to eight issues:   (1) “Whether [he] is presently
    competent to proceed at federal habeas”; (2) “Whether [he] was
    competent to proceed at state habeas”; (3) “Whether the results of
    the state and federal habeas proceedings initiated by [appointed
    habeas counsel] are binding upon him by reason of assent or
    acquiescence”; (4) “Whether flaws in the fact finding process used
    by the Texas court regarding [his] competence preclude [a federal
    court] from according deference to the state court findings”; (5)
    “Whether an evidentiary hearing regarding [his] competence, with
    the attendant funding for experts and discovery, is required to be
    conducted in [district] court”; (6) “Whether a remand to this
    [(district?)] court for an evidentiary hearing regarding [his
    claims under Brady v. Maryland, 
    373 U.S. 83
    (1963), and Strickland
    v. Washington, 
    466 U.S. 668
    (1984)], with the attendant funding for
    experts, discovery, and compulsory process, is required”; (7)
    “Whether the summary excusal of the nine [venire members] with
    3
    doubts about the death penalty requires a new trial”; and (8)
    “Whether    [his]   juror   claims    are   procedurally    barred....”   The
    district court denied a COA for each issue.
    Delk seeks a COA from our court on ten issues.           But, only four
    of those ten were included in his COA requests to the district
    court.     The ten issues, in the order presented here, are:              (1)
    “Whether the Texas Court of Criminal Appeals’ post-conviction
    refusal to fund a thorough mental health examination denied [him]
    full and fair consideration of his claim of incompetence to proceed
    at state habeas, which rendered the state evidentiary record
    incomplete and unreliable, and its competence finding unworthy of
    deference ...” (in district court COA request); (2) “Whether the
    District Court erred in refusing to fund and conduct its own mental
    health examination and evidentiary hearing [on his] claim of [his]
    incompetence to proceed at federal habeas” (in district court COA
    request); (3) “Whether the District Court erred in finding [him]
    competent to be executed ...” (not in district court COA request);
    (4) “Whether [trial counsel rendered ineffective assistance by]
    fail[ing] to investigate [his] medical and mental health background
    ...” (not in district court COA request); (5) “Whether the trial
    court [erred by] excusing for ‘cause’ ... nine [venire members
    based on their views regarding the death penalty] ...” (in district
    court    COA   request);    (6)      “Whether   [trial     counsel   rendered
    ineffective assistance by] fail[ing] to attempt to rehabilitate the
    nine excused [venire members] ...” (not in district court COA
    4
    request);    (7)    “Whether      the    Texas     Court    of    Criminal    Appeals’
    refusal, at state habeas, to fund needed discovery, and compel the
    attendance of ... witnesses ... [at the state evidentiary hearing]
    denied   [him]     full    and    fair    consideration          of   his   Brady    and
    Strickland    claims,       which    rendered       their      denial   unworthy      of
    deference    by    the    ...    District       Court”   (in     district    court   COA
    request); (8) “Whether the prosecutors violated the Due Process
    Clause by withholding from the defense impeaching information
    bearing on the reliability of the ‘future dangerousness’ testimony
    of Tina Delk” (not in district court COA request); (9) “Whether
    [trial counsel rendered ineffective assistance] by failing to
    investigate the background of ... Richard Frye and Tina Delk” (not
    in district court COA request); and (10) “Whether the trial judge
    violated the Due Process Clause and the Eighth Amendment by 1)
    failing to inform the sentencing jury that Mr. Delk would serve a
    minimum of 20 years before parole eligibility, and 2) falsely
    informing a prison community jury that Mr. Delk would actually be
    imprisoned for life if [he did not receive the death penalty]” (not
    in district court COA request).
    Because Delk did not seek a COA from the district court for
    issues 3, 4, 6, and 8-10, we do not have jurisdiction to consider
    those COA requests.2        See Goodwin v. Johnson, 
    224 F.3d 450
    , 459 n.6
    2
    Although the State does not assert a jurisdictional bar to
    consideration of any of the issues for which Delk seeks a COA, we,
    of course, have a duty to consider our jurisdiction sua sponte.
    5
    (5th Cir. 2000) (“before we may consider a petitioner’s application
    for a COA on a particular issue, that petitioner must first submit
    his request to the district court and have that request denied”),
    cert. denied, 
    121 S. Ct. 874
    (2001); Sonnier v. Johnson, 
    161 F.3d 941
    , 946 (5th Cir. 1998) (“Compliance with the COA requirement of
    28 U.S.C. § 2253(c) is jurisdictional, and the lack of a ruling on
    a COA in the district court causes this court to be without
    jurisdiction to consider the appeal.”); Whitehead v. Johnson, 
    157 F.3d 384
    , 387-88 (5th Cir. 1998) (consideration of merits of issue
    not addressed in district court’s COA determination “would run
    afoul of the requirement that initially the district court deny a
    COA as to each issue presented by the applicant”); Muniz v.
    Johnson, 
    114 F.3d 43
    , 45 (5th Cir. 1997) (“district court must deny
    the COA before a petitioner can request one from this court”; COA
    which does not specify issues warranting appellate review “is
    insufficient to vest jurisdiction in this court”).    Moreover, in
    addition to not seeking a COA in district court on the Brady claim
    that is the subject of issue 8 in Delk’s COA application here, the
    Brady claim was not raised in district court as a ground for habeas
    relief.   See Beazley v. Johnson, 
    242 F.3d 248
    , 271 (5th Cir.)
    (habeas claim not raised in district court cannot be considered
    when raised for first time on appeal), petition for cert. filed, __
    E.g., Burt v. Ware, 
    14 F.3d 256
    , 257 (5th Cir. 1994).
    6
    U.S.L.W. __ (U.S. 13 June 2001) (No. 00-10618).                 Accordingly, we
    consider Delk’s COA requests only for issues 1, 2, 5, and 7.3
    II.
    Because Delk sought appellate review of the denial of habeas
    relief after the effective date of the Antiterrorism and Effective
    Death Penalty Act of 1996 (AEDPA), “the right to appeal is governed
    by the certificate of appealability (COA) requirements now found at
    28 U.S.C. § 2253(c)”.          Slack v. McDaniel, 
    529 U.S. 473
    , 478 (2000).
    To obtain a COA, Delk must make “a substantial showing of the
    denial of a constitutional right”.              28 U.S.C. § 2253(c)(2).      For
    that showing, Delk must demonstrate “reasonable jurists could
    debate whether (or, for that matter, agree that) the petition
    should have been resolved in a different manner or that the issues
    presented       were   adequate    to   deserve     encouragement   to   proceed
    further”.        
    Slack, 529 U.S. at 484
      (internal   quotation   marks
    omitted).       For claims as to which the district court denied relief
    on the merits, he “must demonstrate that reasonable jurists would
    find the district court’s assessment of the constitutional claims
    debatable or wrong”.             
    Id. To the
    extent the district court
    rejected    a    claim    on   procedural     grounds   without   reaching   the
    3
    In the alternative, even assuming the six new COA requests
    are subsumed within those presented to the district court, we would
    not grant a COA for any of them, essentially for the reasons stated
    in the denial by the district court of habeas relief on these or
    similar issues, and because Delk fails to satisfy the standards for
    granting a COA, discussed infra.
    7
    underlying constitutional issue, Delk must show “jurists of reason
    would find it debatable whether the petition states a valid claim
    of the denial of a constitutional right and ... jurists of reason
    would find it debatable whether the district court was correct in
    its procedural ruling”.     
    Id. “[T]he determination
    of whether a COA should issue must be
    made   by   viewing   [Delk]’s    arguments   through   the   lens   of   the
    deferential scheme laid out in 28 U.S.C. § 2254(d)”. Barrientes v.
    Johnson, 
    221 F.3d 741
    , 772 (5th Cir. 2000), cert. dismissed, 121 S.
    Ct. 902 (2001).    When a claim has been adjudicated on the merits in
    state court, a federal habeas court must defer to the state court’s
    decision unless it “[is] contrary to, or involve[s] an unreasonable
    application of, clearly established Federal law, as determined by
    the Supreme Court of the United States; or ... [is] based on an
    unreasonable determination of the facts in light of the evidence
    presented in the State court proceeding”.         28 U.S.C. § 2254(d)(1)
    & (2).
    A decision is “contrary to ... clearly established Federal
    law, as determined by the Supreme Court of the United States ... if
    the state court arrives at a conclusion opposite to that reached by
    th[e] Court on a question of law or if the state court decides a
    case differently than th[e] Court has on a set of materially
    indistinguishable facts”. Williams v. Taylor, 
    529 U.S. 362
    , 412-13
    (2000).     A decision “involve[s] an unreasonable application of []
    8
    clearly established Federal law, as determined by the Supreme Court
    of the United States ... if the state court identifies the correct
    governing   legal     principle        from      th[e]   Court’s      decisions    but
    unreasonably applies that principle to the facts of the prisoner’s
    case”.   
    Id. A state
    court’s findings of fact are presumed to be
    correct unless the petitioner rebuts the presumption by “clear and
    convincing evidence”.     28 U.S.C. § 2254(e)(1).
    A.
    COA request 1 concerns Delk’s claim that the Court of Criminal
    Appeals’ post-conviction refusal to fund a thorough mental health
    examination denied him full and fair consideration of his claim of
    incompetence to proceed at state habeas, which rendered the state
    evidentiary record incomplete and unreliable, and its competence-
    finding unworthy of deference.
    The state habeas court found Delk did not meet his burden of
    proving he was either incompetent to assist his habeas counsel or
    had   insufficient     ability        to    understand       either    factually    or
    rationally the proceedings against him. The district court adopted
    the magistrate judge’s recommendation that this finding was not
    unreasonable, in the light of the evidence presented at the state
    habeas evidentiary hearing, including:                   Delk has a history of
    manipulation;    he    finds     it     in      his   best    interest    to   appear
    incompetent when an audience is available; and, if he wishes to do
    so, he has the ability to consult with his lawyer with a reasonable
    9
    degree of rational understanding.           The district court concluded:
    Delk was given an adequate opportunity to present his factual
    claims to the state court; and the state habeas court’s finding
    that Delk was competent to proceed at state habeas was supported by
    testimony   at    the   state   habeas      evidentiary     hearing,    which
    demonstrated Delk is coherent when he wants to be and has been
    diagnosed as feigning mental illness in order to avoid execution.
    Delk is not entitled to a COA on this claim because he has not
    demonstrated that “reasonable jurists would find the district
    court’s assessment of [this] claim[] debatable or wrong”.               
    Slack, 529 U.S. at 484
    .    He cites no authority for the proposition that
    the Constitution    requires    a   death    row   inmate   to   be   mentally
    competent to assist counsel in pursuing state habeas relief or to
    participate in state habeas proceedings.             Along this line, our
    court has noted that the Supreme Court has not mandated addition of
    an “assistance prong” to the standard for determining competency to
    be executed.     See Barnard v. Collins, 
    13 F.3d 871
    , 877 n.4 (5th
    Cir.), cert. denied, 
    510 U.S. 1102
    (1994).          Therefore, Delk seeks
    the announcement of a new rule of criminal procedure which cannot
    be applied retroactively on collateral review (Teague-barred).
    See, e.g., Caspari v. Bohlen, 
    510 U.S. 383
    , 389 (1994) (federal
    court may not grant “habeas relief to a state prisoner based on a
    rule announced after his conviction and sentence became final”);
    10
    Teague v. Lane, 
    489 U.S. 288
    , 310 (1989) (plurality).    Delk does
    not claim an exception to this nonretroactivity principle.
    Although the state habeas court conducted an evidentiary
    hearing to determine Delk’s competency to proceed at state habeas,
    it was not constitutionally required to do so.   Accordingly, Delk
    is not entitled to a COA on the ground that the state court’s
    competency finding is not entitled to deference because of the lack
    of adequate funding for a thorough mental health examination,
    because alleged deficiencies in state habeas proceedings are not a
    basis for federal habeas relief.     See Nichols v. Scott, 
    69 F.3d 1255
    , 1275 (5th Cir. 1995) (“An attack on a state habeas proceeding
    does not entitle the petitioner to habeas relief in respect to his
    conviction, as it is an attack on a proceeding collateral to the
    detention and not the detention itself.” (emphasis added; internal
    quotation marks and citation omitted)), cert. denied, 
    518 U.S. 1022
    (1996); Duff-Smith v. Collins, 
    973 F.2d 1175
    , 1182 (5th Cir. 1992)
    (“infirmities in state habeas proceedings do not constitute grounds
    for federal habeas relief” (emphasis added)), cert. denied, 
    507 U.S. 1056
    (1993).
    B.
    COA request 2 concerns Delk’s related claim that the district
    court erred by refusing to fund a mental health examination and
    conduct an evidentiary hearing to determine his competency to
    participate in federal habeas proceedings.    He maintains such a
    11
    hearing is required by Mata v. Johnson, 
    210 F.3d 324
    (5th Cir.
    2000).
    The     district   court     adopted   the   magistrate    judge’s
    recommendation that Delk’s claim of incompetence to assist his
    attorney in the federal proceeding could be resolved on the basis
    of the state court’s findings.       In denying a COA for this claim,
    the district court noted that the evidence presented by Delk did
    not raise a bona fide doubt as to his competency, and stated that
    Delk had not demonstrated “why a reasonable person might find”
    otherwise.
    Delk is not entitled to a COA on this claim because he has not
    demonstrated that “jurists of reason would find it debatable
    whether the petition states a valid claim of the denial of a
    constitutional right and ... whether the district court was correct
    in its procedural ruling”.      
    Slack, 529 U.S. at 484
    .   As is the case
    in regard to his claim regarding competency to proceed at state
    habeas, Delk cites no authority holding that the Constitution
    requires a death row inmate to be mentally competent to assist
    counsel in pursuing federal habeas relief; therefore, this claim is
    also Teague-barred.
    Contrary to Delk’s assertion, Mata does not mandate a federal
    evidentiary hearing on his claim of incompetency to participate in
    federal habeas proceedings.      Mata dealt with “whether the district
    court conducted a constitutionally adequate fact-finding inquiry to
    12
    make a reliable determination of Mata’s competency to abandon
    collateral review of his capital murder conviction and sentence”.
    
    Mata, 210 F.3d at 327
    .          Mata applied Supreme Court precedent
    requiring   that   a   habeas   petitioner    be   competent   to   abandon
    collateral review in a capital case.         
    Id. at 327-28.
       There is no
    similar constitutional requirement that a petitioner be competent
    to participate in a federal habeas proceeding; accordingly, the
    district court was not required to conduct an evidentiary hearing
    on Delk’s competence to participate.     See Hicks v. Wainwright, 
    633 F.2d 1146
    , 1150 (5th Cir. Unit B 1981) (“When the only question is
    legal rather than factual no evidentiary hearing is needed.”),
    quoted in 
    Barrientes, 221 F.3d at 770
    .
    C.
    Delk’s COA request 5 concerns his claim that the trial court
    violated his Sixth and Fourteenth Amendment rights by excusing for
    cause nine venire members on the ground that they could not impose
    death as a penalty.
    “[T]he proper standard for determining when a prospective
    juror may be excluded for cause because of his or her views on
    capital punishment ... is whether the juror’s views would prevent
    or substantially impair the performance of his duties as a juror in
    accordance with his instructions and his oath”.            Wainwright v.
    Witt, 
    469 U.S. 412
    , 424 (1985) (internal quotation marks omitted).
    A venire member’s being excused for cause is an implicit finding of
    13
    bias, which is presumptively correct under 28 U.S.C. § 2254(e)(1).
    See id.; see also McFadden v. Johnson, 
    166 F.3d 757
    , 758 (5th
    Cir.), cert. denied, 
    528 U.S. 947
    (1999); Williams v. Collins, 
    16 F.3d 626
    , 633 (5th Cir.), cert. denied, 
    512 U.S. 1289
    (1994).
    The state habeas court found Delk failed to meet his burden of
    proving the nine venire members had not disqualified themselves by
    their statements to the trial judge, considered in the context of
    their accompanying demeanor and vocal inflections, that, because of
    their views on capital punishment, they could not answer the
    special issues affirmatively based on the evidence.          The district
    court denied relief on this claim because the record demonstrated
    the nine were properly excused because they could not follow the
    law.
    Delk is not entitled to a COA for this claim because he has
    not demonstrated that “reasonable jurists would find the district
    court’s assessment of [this] claim[] debatable or wrong”.              
    Slack, 529 U.S. at 484
    .   As the district court noted, the record supports
    the trial court’s presumptively-correct, implicit finding that the
    nine   unambiguously   stated   they    would   not   administer   a   death
    sentence under any circumstances.         Delk has not rebutted these
    presumptively-correct findings, nor has he demonstrated the state
    trial court’s rulings were “based on an unreasonable determination
    of the facts in light of the evidence presented in the State court
    proceeding”.    28 U.S.C. § 2254(d)(2).
    14
    D.
    Delk’s COA request 7 concerns his claim that the Court of
    Criminal    Appeals’      refusal,       at   state    habeas,   to     fund    needed
    discovery and to compel the attendance of Tina Delk, Richard Frye,
    and the prosecutor’s former investigator at the state habeas
    evidentiary hearing denied him full and fair consideration of his
    Brady and Strickland claims, which rendered their denial unworthy
    of deference by the district court.
    Delk’s Brady claim, asserted in his state habeas application,
    but   not   as    a   ground       for   federal   habeas     relief,    was:      the
    prosecution failed to disclose that Florida authorities did not
    intend to prosecute Delk for the Florida murder which Tina Delk had
    reported to them; and this could have been used to impeach Tina
    Delk’s testimony at the penalty phase (that Delk told her he had
    committed that murder).            During the state habeas proceeding, Delk
    expanded    his       Brady    claim     to     include   allegations      that     the
    prosecution      failed       to   disclose     Tina   Delk   had   been    a     child
    prostitute with mental problems.
    Among the Strickland claims asserted by Delk in his state
    habeas application, and as grounds for federal habeas relief, were
    that counsel rendered ineffective assistance:                    at voir dire, by
    failing to attempt to rehabilitate the nine persons excused for
    cause; and at the penalty phase, by failing to investigate both the
    15
    backgrounds of the State’s witnesses for impeachment material and
    Delk’s mental health.
    The state habeas court found:       Delk’s “writ counsel’s efforts
    to induce the Court to issue bench warrants, subpoenas and to
    authorize[] out of state depositions for the stated purpose of
    obtaining ‘impeachment information’ about state witnesses, have
    never been accompanied by any representation or allegation by writ
    counsel that would lead a rational [trier] of the facts to believe
    that these efforts are anything more than a ‘fishing expedition’”;
    and Delk did not satisfy his burden of proving the State failed to
    furnish him with adequate financial resources to timely investigate
    and present his claims.         It concluded that trial courts in post-
    conviction habeas proceedings are not required to compel attendance
    or testimony of witnesses who testified at trial, absent a showing
    they   “have   testimony   to    offer   which   would   if   taken   as   true
    establish grounds for habeas relief”.
    Regarding Delk’s claim that the Texas state courts did not
    adequately fund his habeas proceeding to allow full development of
    the record, the magistrate judge recommended a constitutional claim
    was not stated.     The district court adopted that recommendation,
    and also denied Delk’s request for an abatement of the federal
    proceeding until his counsel had additional time to complete
    background investigations of Frye and Tina Delk.                The district
    court observed:    Delk was given an adequate opportunity to present
    any factual claims in state court; his claims were the subject of
    16
    a   state    evidentiary       hearing;      and    no   further    discovery      was
    necessary.
    Delk is not entitled to a COA for this claim because he has
    not   demonstrated       “reasonable      jurists    would   find    the   district
    court’s assessment of [this] claim[] debatable or wrong”.                      
    Slack, 529 U.S. at 484
    .         As 
    discussed supra
    , infirmities in state habeas
    proceedings do not constitute grounds for federal habeas relief.
    In any event, the state court’s refusal to allow discovery for this
    claim,      or   to    finance     a   Chicago-area      investigation        of   the
    backgrounds of Tina Delk and Frye, was not unreasonable, because
    Delk’s claim that discovery and funding of such an investigation
    would    likely       reveal   more    useful      impeachment     information      is
    speculative.      See Murphy v. Johnson, 
    205 F.3d 809
    , 814 (5th Cir.)
    (“Allegations         that   are   merely    ‘conclusionary’       or   are    purely
    speculative cannot support a Brady claim.”), cert. denied, 121 S.
    Ct. 380 (2000); see also 
    id. at 816-17
    (federal rules governing §
    2254 cases do not “authorize fishing expeditions”).
    III.
    For the foregoing reasons, a COA is
    DENIED.
    17