White v. Dretke , 126 F. App'x 173 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 24, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 04-70024
_______________________
MELVIN WAYNE WHITE,
Petitioner - Appellant,
versus
DOUGLAS DRETKE, Director,
Texas Department of Criminal Justice -
Institutional Division,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Texas
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Melvin Wayne White was convicted of capital murder and
sentenced to death for the murder of nine-year-old Jennifer Lee
Gravell in the course of committing or attempting to commit
kidnapping, or in the course of committing or attempting to commit
aggravated sexual assault. After exhausting state remedies, White
filed a § 2254 petition for a writ of habeas corpus in federal
district court raising two grounds for relief. The district court
wrote a thorough and well-reasoned opinion that granted the state’s
*
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opinion should not be published and is not precedent except under the limited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.
motion for summary judgment on the two issues, dismissed White’s
petition, and refused to grant a certificate of appealability
(“COA”) on either issue raised.
White now seeks a COA from this court on two issues:
(1) whether the evidence admitted at trial and during the
punishment phase was sufficient to support the jury’s affirmative
answer to the future dangerousness special issue; and (2) whether
he can show cause to excuse the procedural default of his challenge
to the “good-time” jury instruction given at punishment. We deny
a COA on each claim.
BACKGROUND
On August 4, 1997, then forty-seven-year-old White
kidnapped, sexually assaulted and murdered a nine-year-old girl who
lived in his neighborhood in Ozona, Texas. On the night of a
neighborhood barbeque, White went home between 10:30 and 11:00 p.m.
after consuming several alcoholic drinks. Around this time, the
victim came over to his house. White took her in his truck to a
roadside rest area where he bound the girl’s hands behind her back
with electrical tape, stuffed a sock in her mouth and sexually
assaulted her with an object – possibly a screwdriver. He also
admitted that he penetrated her vagina with his finger. White then
killed the girl by repeatedly striking her head with a tire tool
and dumped her body behind a water tank in a field outside of town.
In a trash can in White’s house, investigators discovered the
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victim’s underpants, sandals, and a ball of electrical tape with
her hair in it.
At the punishment phase of trial, the prosecution
presented evidence that White had forced his daughter to perform
oral sex and penetrated her with his finger when she was twelve
years old. White’s daughter testified that two years later her
father had offered her fifty dollars per week if she would provide
him with sexual favors upon demand. Further evidence demonstrated
that when White was between ten and twelve years old he touched the
genitals of a four-year-old relative. Additionally, a witness
testified that White allowed teenagers to have parties at his house
where alcohol was served, and during a party he touched a teenage
girl’s breast. Another witness testified that White had watched
her engage in sex with his son and later described the events in
detail.
Dr. Windell Dickerson, the chief psychologist employed by
the Texas prison system, opined for the prosecution that, if one
believed that White had raped his daughter, then White posed a very
serious risk for further violent conduct. Dr. Dickerson concluded
that White was “at substantial risk” or “considerable risk” of
committing criminal acts of violence that would constitute a
continuing threat to society. Specifically, he stated that “the
possibility of Melvin Wayne White doing something else in or out of
prison is substantially greater than it is for an individual who is
doing okay in their life.” Dr. Dickerson further testified that
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research indicates that sex offenders “tend to commit multiple
kinds of sex offenses.”
Dr. Dickerson also informed the jury that women serve
among the prison staff, and in most units of the prison system,
there have been escapes from prison, including one from death row.
Further, alcoholic beverages are available inside prison even
though their consumption violates prison rules.
On June 10, 1999, the jury found White guilty of capital
murder. Following a separate punishment hearing, the jury answered
in the affirmative the special issues set forth in Texas Code of
Criminal Procedure article 37.071(b), and White was sentenced to
death. On direct appeal, the Texas Court of Criminal Appeals
(“CCA”) affirmed White’s sentence and conviction in an unpublished
opinion. White v. State, No. 73,592 (Tex. Crim. App. Jan. 31,
2001). On September 7, 2000, White commenced a state application
for writ of habeas corpus. The state district court held an
evidentiary hearing and entered findings of fact and conclusions of
law recommending denial of relief. The CCA denied relief in an
unpublished order adopting the findings and conclusions entered by
the trial court.
DISCUSSION
White’s § 2254 habeas petition is subject to the Anti-
terrorism and Effective Death Penalty Act of 1996 (AEDPA). See
Penry v. Johnson, 532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9
4
(2001). AEDPA mandates that White obtain a COA before he can
appeal the district court’s denial of habeas relief. 28 U.S.C.
§ 2253(c)(1). Indeed, “until a COA has been issued federal courts
of appeals lack jurisdiction to rule on the merits of appeals from
habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123
S. Ct. 1029, 154 L. Ed. 2d 931 (2003).
A COA will issue only when the petitioner has made
“a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123
S. Ct. 1029. To make such a showing, a petitioner must demonstrate
that “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.” Id.
“[A] COA ruling is not the occasion for a ruling on the
merit of petitioner’s claim.” Id. at 331. Rather, at this stage
we engage in an “overview of the claims in the habeas petition and
a general assessment of their merits.” Id. at 336. “Indeed, a
claim can be debatable even though every jurist of reason might
agree, after the COA has been granted and the case has received
full consideration, that petitioner will not prevail.” Id. at 338.
Although the nature of the death penalty is a proper
consideration for determining whether the court should issue a COA,
its severity alone is not sufficient to warrant the issuance of the
certificate. Ogan v. Cockrell, 297 F.3d 349, 355 (5th Cir. 2002).
5
Nevertheless, doubts regarding the propriety of issuing the
certificate in a death penalty case should be resolved in favor of
the petitioner. Id.
Even if the petitioner succeeds in obtaining a COA, he is
not necessarily entitled to habeas relief. “To prevail on a peti-
tion for writ of habeas corpus, a petitioner must demonstrate that
the state court proceeding ‘resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States.’” Robertson v. Cockrell, 325 F.3d 243, 247-48
(5th Cir. 2003) (en banc) (quoting 28 U.S.C. § 2254(d)(1) (2000)).
Before this court may grant habeas relief under the “unreasonable
application” standard, “the state court’s application must be more
than merely incorrect.” Id. at 248. Rather, the more appropriate
inquiry is whether the “state court’s application of clearly
established federal law was objectively unreasonable.” Cotton v.
Cockrell, 343 F.3d 746, 750 (5th Cir. 2003).
1. The Legal Sufficiency of the Evidence Supporting the Jury’s
Finding of Future Dangerousness
White contends that the evidence was insufficient to
support the jury’s affirmative answer to the second special punish-
ment issue, namely, whether there is, beyond a reasonable doubt, a
probability that White would commit acts of violence constituting
6
a continuing threat to society.1 Further, White contends that the
evidence presented by the state’s mental health expert that White
could commit future violent acts in prison was too speculative to
support the jury finding. White argues from Jurek that the
constitutional validity of the Texas death penalty statute is
predicated on a restrictive interpretation of Texas’s “future
dangerousness” special issue and a limitation of capital punishment
to only the most extraordinary crimes. See Jurek v. Texas, 428
U.S. 262, 273-74, 276, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976).
When a habeas petitioner asserts that the evidence
presented to the state court was insufficient to find future
dangerousness, the limited question before a federal habeas court
is whether the state courts’ decision to reject that claim was an
objectively unreasonable application of the clearly established
federal law set out in Jackson v. Virginia, 443 U.S. 307, 323, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Martinez v. Johnson, 255
F.3d 229, 241 n.21 (5th Cir. 2001) (“Therefore, our review of the
CCA’s decision is properly framed as whether that decision
constitutes an ‘unreasonable application’ of Jackson.”); Callins
1
According to White, a reasonable juror could, from the evidence
presented at sentencing, have concluded that he posed a future danger of sexual
violence toward young girls, and presented a much smaller risk of more
generalized violence when he was intoxicated. On the other hand, a reasonable
jury could not have concluded beyond a reasonable doubt that White would present
a future danger because imprisonment would deprive him of access to young girls
and alcohol, the two stimuli previously associated with the violent conduct in
his life. According to White, the chance that he would live long enough to be
released was nearly non-existent because White was forty-nine years old at
sentencing and would not have been eligible for release until he was almost
ninety years old if not sentenced to death.
7
v. Collins, 998 F.2d 269, 276 (5th Cir. 1993) (citing Jackson).
Under Jackson, a conviction is constitutional if, “after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S. Ct.
2789.
The CCA began its review of White’s capital sentence by
directly citing Jackson and framing its analysis under that
constitutional standard.2 The CCA then stated that, under Texas
law, a jury may consider several factors to support a finding of
future dangerousness, including: (1) the circumstances of the cap-
ital offense; (2) the calculated nature of the defendant’s conduct;
(3) the deliberateness exhibited in the execution of the crime;
(4) the existence and severity of any previous offenses committed
by the defendant; (5) the defendant’s age and personal circum-
stances at the time of the offense; (6) whether, at the time of the
offense, the defendant was acting under duress; (7) psychiatric
evidence; and (8) character evidence. White v. State, No. 73,592,
slip op. at 2-3 (Tex. Crim. App. Jan. 31, 2001) (citing Wilson v.
State, 7 S.W.3d 136, 142 (Tex. Crim. App. 1999)). The CCA then
2
White v. State, No. 73,592, slip op. at 2 (Tex. Crim. App. Jan. 31,
2001) (“In analyzing appellant’s claim, we view the evidence in the light most
favorable to the jury’s verdict and ask whether a jury rationally could have
concluded beyond a reasonable doubt that ‘there is a probability that [appellant]
would commit criminal acts of violence that would constitute a continuing threat
to society.’ Jackson v. Virginia, 443 U.S. 307 (1979); Barnes v. State, 876
S.W.2d 316, 322 (Tex. Crim. App. 1994).”).
8
cited its substantive law that the circumstances of the charged
offense may alone be sufficient to support an affirmative finding
of future dangerousness. Id.3
The CCA reviewed and rejected White’s sufficiency of the
evidence claim. In so doing, the CCA recited the relevant evidence
and reasoned as follows:
A rational jury could find that the circumstances of the
instant offense alone indicate [White] would commit
future violent criminal acts – the acts committed by
[White] were particularly gruesome. See, e.g., Williams
v. State, 937 S.W.2d 479, 484 (Tex. Crim. App. 1996).
But the offense is not an isolated incident of sexual
abuse on the part of [White]. [White] has a history of
sexually assaulting young girls. Additionally, [White]
has been physically violent against both women and men.
Furthermore, both the prosecution’s and [White]’s
psychological experts stated that [White] would likely
commit offenses against female children in the future.
Considering the evidence presented at guilt/innocence and
punishment and the factors detailed above, we conclude
that there was sufficient evidence to support the jury’s
conclusion that there was a probability that [White]
would be a future danger to society. Barnes [v. State,
776 S.W.2d 316, 322 (Tex. Crim. App. 1994)].
The jury’s affirmative answer to the future dangerousness
issue is reasonable even if, as [White] suggests, we
disregarded the well-settled law and redefine “society”
to include only the prison population. See, e.g.,
Narvaiz v. State, 840 S.W.2d 415, 424 (Tex. Crim. App.
3
It should also be recognized that the CCA has stated that the term
“continuing threat to society” requires no special definition. The term is to
be understood in its usual acceptance in common language and need not be defined
in the charge to the jury. Lackey v. State, 819 S.W.2d 111, 118 n.2 (Tex. Cr.
App. 1989). The term “includes not only free citizens but also inmates in the
penitentiary. Therefore, the length of time appellant remains incarcerated is
not relevant to the issue of whether he will be a continuing threat to society.”
Jones v. State, 843 S.W.2d 487, 495 (Tex. Crim. App. 1992) (internal citation
omitted); Narvaiz v. State, 840 S.W.2d 415, 424 (Tex. Crim. App. 1992) (noting
that the state’s burden is to prove that a capital defendant poses “a continuing
threat, whether in or out of prison”).
9
1992). The prosecution’s psychological expert testified
that [White] was likely to be a target of violence in
prison. “The more he is a recipient of it, the more
likely he is to act out in that way.” The expert also
testified that women work on the staff at prisons.
Additionally, the expert stated that in the absence of
women, some men “will tend to shift to guys.” In light
of this evidence, we concluded that the jury could find
beyond a reasonable doubt that someone like appellant,
who kidnaps, sexually assaults and murders a 9-year-old
girl, would be dangerous to prison society as well as
non-prison society. See Barnes, 876 S.W.2d at 322.
Id. at 5-6.
Under the limited scope of AEDPA review, the district
court concluded that the CCA was not objectively unreasonable in
its application of the Jackson standard in determining, after a
review of the evidence in the light most favorable to the
prosecution, that a rational trier of fact could find the essential
elements of future dangerousness beyond a reasonable doubt. A
rational finder of fact could have found beyond a reasonable doubt
that White posed a future danger based on its consideration of the
brutal nature of the crime and the violent manner of the treatment
of the victim’s body. Additionally, the testimony of the experts
and witnesses concerning White’s background and behavior, even
though disputed, supports a finding of future dangerousness. Based
on the evidence presented at trial, including the evidence of the
expert psychological witness, a jury could have concluded that
White posed a future danger whether in or out of prison. White has
not demonstrated that reasonable jurists could debate whether, or
disagree that, the district court should have resolved his habeas
10
petition in a different manner. Therefore, we deny White’s
application for COA on this issue.
2. Cause to Excuse Procedural Default of the Underlying Claim
that the Jury Received a Constitutionally Inaccurate
Instruction on White’s Eligibility for Good Time Credit.
White argued before the district court that an
instructional error on the possibility of parole introduced
unwarranted uncertainty about the length of time White would be
required to spend in prison, and thus tainted his sentencing
proceedings with a level of unreliability inconsistent with the
protection of the Eighth and Fourteenth Amendments. According to
White, his jury was incorrectly instructed that if he received a
life sentence, he would be eligible to “earn time off the period of
incarceration imposed through the award of good conduct time.”
White contends that this instruction was incorrect because those
sentenced to life prison terms for capital murder are ineligible
for good conduct reductions. White admits that his trial attorneys
did not lodge an objection to this instruction, and that this issue
was not raised on either direct appeal or state habeas proceedings.
The district court rejected White’s argument on the basis
of procedural bar. White v. Dretke, No. P-01-CV-076, slip op. at
32-33 (W.D. Tex. Apr. 22, 2004). Additionally, the district court
determined that an argument that state habeas counsel provided
ineffective assistance did not excuse the procedural default. Id.
The court alternatively found no merit in White’s claim. White now
11
seeks a COA to determine whether he has demonstrated cause to
excuse the procedural default of his jury instruction claim.
The law requires that “a state prisoner seeking to raise
claims in a federal petition for habeas corpus ordinarily must
first present those claims to the state court and must exhaust
state remedies.” Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir.
2001) (citing 28 U.S.C. § 2254(b)). Generally, if the petitioner
fails to follow these procedures, his claims will be considered
procedurally defaulted and will not be regarded as grounds for
granting federal habeas relief. Id. at 239 (citing Keeney v.
Tamayo-Reyes, 504 U.S. 1, 9, 112 S. Ct. 1715, 118 L. Ed. 2d 318
(1992)). However, a petitioner can overcome this procedural default
if he can demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law. Id. (citing
Jones v. Johnson, 171 F.3d 270, 277 (5th Cir. 1999)).
White asserts that the ineffective performance of his
counsel at each of the state trial, appellate and habeas
proceedings provides cause that excuses his default. White argues
that because of his state habeas counsel’s damaging ineffective-
ness, which prevented him from demonstrating counsel’s ineffec-
tiveness at the sentencing stage and on direct appeal, he can
demonstrate cause excusing the procedural default.
White’s argument is foreclosed by circuit precedent.
This court has consistently held that ineffective assistance of
12
state habeas counsel cannot provide cause for a procedural default.
See, e.g., Ogan v. Cockrell, 297 F.3d 349, 357 (5th Cir. 2002);
Martinez, 255 F.3d at 245; In re Goff, 250 F.3d 273, 274-76,
(5th Cir. 2001). This is because there is no underlying right to
counsel in state post-conviction review and there is no cognizable
constitutional claim based on the ineffectiveness of state habeas
counsel. Jones v. Johnson, 171 F.3d 270, 277 (5th Cir. 1999);
Callins v. Johnson, 89 F.3d 210, 212 (5th Cir. 1996).
Accordingly, reasonable jurists could not disagree as to
whether White has articulated a claim of cause to excuse the
procedural default of his claim of instructional error. We
therefore deny a COA on this issue.
CONCLUSION
Because we DENY White’s application for COA on both of
the issues raised, we lack jurisdiction to review the district
court’s denial of habeas relief.
COA DENIED.
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