Ricky Lee Green
Classification: Serial killer
Characteristics: Bisexual - Rape - Sexual mutilation
Number of victims: 4 - 12
Date of murders: 1985 - 1986
Date of birth: December 27, 1960
Victims profile: Jeffrey Davis, 16 / Steven Fefferman, 28 / Sandra Bailey, 27 / Betty Jo Monroe, 28
Method of murder: Stabbing with knife / Beating with a hammer
Location: Tarrant County, Texas, USA
Status: Executed by lethal injection in Texas on October 9, 1997
Date of Execution:
October 8, 1997
Offender:
Ricky Lee Green #984
Last Statement:
I want to thank the Lord for giving me this opportunity to get to know Him. He has shown me a lot and He has changed me in the past two months.
I have been in prison 8½ years and on Death Row for 7, and I have not gotten into any trouble. I feel like I am not a threat to society anymore. I feel like my punishment is over, but my friends are now being punished.
I thank the Lord for all He has done for me.
I do want to tell the…
Ricky Lee GREEN
Serial killer Ricky Lee Green, 36, was pronounced dead on October 9, 1997, after being lethally injected by prison authorities in Huntsville, Texas. "Now we can go on and not have to worry about him getting out and hurting anyone else,'' said Shirley Bailey, the sister of one of his known victims.
Speaking quietly and slowly, Green turned to four relatives of his victims and said he was sorry. "This to me is another killing and it's not going to solve nothing. I feel my punishment is over and now my friends and family are being punished." Executioners had trouble finding "a suitable vein," thanks to Ricky's fondness for intravenous drugs. Before dying the convicted killer reminded onlookers that he had been a model prisoner while on Death Row.
The one-eyed radiator repairman was condemned to death for the Dec. 27, 1986, murder of Steven Fefferman, an advertising executive for a Fort Worth television station. Fefferman, 28, was castrated and repeatedly stabbed with a butcher knife at his home after having sex with Green.
He also admitted killing three people in 1985, including a 16-year-old boy who was also castrated and stabbed Green had been sentenced to life prison terms for two of the other killings.
Fort Worth police Detective Danny LaRue asked Green at the time of his arrest why he killed, his reply was: "They all deserved it. They were kind of the dregs of society." LaRue believes eight other unsolved murders in North Texas bear Green's trademarks.
Convicted Serial Killer Is Executed in Texas
The New York Times
October 9, 1997
A convicted serial killer tied to four murders in Texas and suspected of at least eight more deaths was executed today for a sexual mutilation slaying almost 11 years ago.
The inmate, Ricky Lee Green, 36, was pronounced dead at 6:31 P.M., central daylight time, seven minutes after a dose of lethal drugs was released into his right arm.
In his final statement, Mr. Green thanked ''the Lord above,'' his friends and his fellow death-row inmates. He also noted that he had been in prison for eight and a half years, the last seven on death row, and had caused no trouble.
Mr. Green addressed four relatives of his victims, who watched through a window a few feet away, and said he was ''really sorry, but this to me is another killing and it's not going to solve nothing.''
As the lethal solution took effect, he gasped several times before he stopped breathing. Only one needle was used on Mr. Green instead of the customary two. Prison officials were unable to locate a suitable vein in the left arm of the longtime drug user.
Mr. Green, a radiator repairman portrayed by prosecutors as a psychopath, was condemned for the Dec. 27, 1986, death of Steven Fefferman, an advertising executive with Fort Worth television station KXAS.
Ricky Lee Green
In his final statement, Green thanked "the Lord above" and noted that he had been in prison for 8 years and caused no trouble.
"I feel I'm not a threat to society no more," he said, speaking quietly and slowly. "I feel my punishment is over and now my friends and family are being punished."
Turning to 4 relatives of his victims, who watched through a window a few feet away, Green said he was "really sorry, but this to me is another killing and it's not going to solve nothing."
Green, a 1-eyed radiator repairman, was condemned for the Dec. 27, 1986 death of Steven Fefferman, an advertising executive with Fort Worth television station KXAS.
Fefferman, 28, was castrated and repeatedly stabbed with a butcher knife at his home after he and Green had sex, according to testimony at Green's trial.
"He's real cold," said former Fort Worth police Detective Danny LaRue. "When I finally got through with the confessions and asked him why he killed these people, his reply was: "They all deserved it. They were kind of the drugs of society."
Green was sentenced to life prison terms for 2 other killings.
Jeffrey Davis, 16, was castrated and stabbed like Fefferman in April 1985. His nearly decapitated body was found in a swamp at the Fort Worth Nature Center.
Sandra Bailey, 27, who met Green in a country-western bar in November 1985, died from stab wounds and hammer blows to the head. Her body was dumped in a ditch.
He also confessed to killing 28-year-old Betty Jo Monroe of Amarillo, a topless dancer who was hitchhiking in Fort Worth in October 1985 when she was picked up by Green. She had been stabbed, mutilated and beaten in the head with a hammer.
LaRue, now retired and working as a private detective, said 8 other unsolved murders in North Texas bear Green's trademarks.
Ricky Lee Green & Sharon Dollar Green
Ricky lee green was horribly abused by his father and grandfather for many years. His father was abusive in ways no human could ever imagine. At the age of six ricky lee greens father bill green forced his son to run from the porch where his father sat with a bb gun. At the count of ten he was told to run while his father shot at him hitting him with the small metal bb's. The six year old tried to out run the bb's but it was no use he was hit everytime. The only comment he ever heard form his father was maybe you better learn to run faster.
This is only one example of his life long abuse by his father. there were other kinds of abuse that he endured like beatings,verbal abuse,and sexual abuse. From the time he was born all Ricky Green ever remembered hearing from his father was how he was no good and never would be. Ricky Green on several occasions in his
Childhood was sent to stay with his grandfather who sexually sodimized him time after time. Ricky could never understand if they were supposed to love him why they always hurt him.
On february 18, 1984 Ricky married Mary Francis. Ricky felt that she was the closest he had to a normal family. there relationship was based solely on sex.
There marriage started to deteriorate after only two months. Ricky suspected that mary sought sexual satisfaction from others. Ricky was very unhappy. He drank a lot and drove around to escape reality. One night when Mary got home from work Ricky was sitting in the livingroom heavily drinking. he pulled a knife on her and raped her. When he passed out she grabbed her belongings and left never to return.
A couple of weeks later ricky met a women by the name of Sharon Dollar. There first night together was all sex and booze. Three days after Ricky and Sharon were together she asked him to move in with her and he said yes. Although Ricky was happier with sharon then he had ever been in his life his drinking steadily increased.
One night in the middle of hot passionate sex Sharon pricked Ricky's penis with a needle longing for the taste of blood. Ricky at first objected to the pain but it was to late she was already sucking the blood from his penis relieving his pain. This was the first time Ricky noticed Sharon's pleasure for blood.
The first victim of Ricky was a teen by the name of Jeffrey Davis. Ricky had met davis before and invited him to hang out with him since Sharon was out of town.
The two went driving around. Ricky made a stop to urinate, when he returned he found Davis in the passenger seat masterbating. Davis asked Ricky if he'd like to touch him and Ricky got mad and beat Davis. they continued to drive around and the more Davis complained the more Ricky beat him until finally Ricky pulled
Over to a secluded area and dragged Davis out of the car beating him and mutilating Davis with a knife. Ricky killed Davis and proceeded to cut off his penis and toss it into the nearby lake. He then disposed of the body in a secluded area nearby.
On september 20, 1980 Ricky and Sharon Dollar married. The next victim was for the sexual pleasure of now husband and wife Ricky and Sharon Green. Ricky was driving along the road when he spotted a women hitchhiking. He pulled over to give her a ride. The women stuck her head in the window and said her name was montana. Ricky asked her if she would like to take a shower and get cleaned up.
She agreed and they went back to his house. As Montana was taking a shower he went into the bathroom and opened the shower curtain and asked her if he could join. The two had sex in the shower and it continued on into the bedroom. He then told her it was time to pick up his wife from work.
When he arrived to pick up Sharon she was surprised to see a women in the car. When they got back to the house ricky propositioned sharon with the idea that all three have sex. They agreed and went into the bedroom. When Sharon appeared naked at the doorway Montana changed her mind, but it was to late the two already had there minds set.
Ricky and Sharon tied Montana to the bed. Montana kicked and screamed. The two soon tired of her and drug her to the bathroom where Ricky tried to sodimize Montana.
Sharon went to the kitchen to retrieve a knife. Without warning Sharon thrust the knife into Montana. Ricky went into the bedroom to get his pocket knife. When he returned he saw Montana try to get up so he stabbed her again and again. Ricky again left to get a large hammer. He then bashed her head in three or four times. Sharon wanted to try it also so she then to hit Montana in the head. Montana was dead and they just stood there looking at what they had done.
With the dead corpse lying there and blood all over the walls Ricky leaned over and started to fondle Sharons breast. Sharon immediately got turned on and Sharon and Ricky had the most powerful sex in the blood of there victim. Afterwards they proceeded to clean the bathroom and load the corpse into the trunk of their car to dispose of the body. They took her to a secluded area and dumped her.
Rickys next victim was a women by the name of Sandra Bailey. He met her at a club he frequented. He took her back to his house where his wife was waiting.
When Sandra saw Rickys wife she wanted to go home. The two tied her up and proceeded to carry out the same scenerio they did with Montana. The only thought the two had afterwards was that the sex was not as powerful as it was the first time. They took the body and disposed of it in the same fashion they did Montana.
Rickys final victim was a man by the name of Steven Fefferman. Ricky met Feeferman in a parking lot frequented by homosexuals.
Ricky agreed to go back to Stevens home with him. When they arrived Steven started to fondle Ricky in the livingroom. Steven excused himself to take a shower.
When he returned he found Ricky in the bedroom. Ricky asked Steven if he could tie him up and each would take a turn at being tied up. After Ricky tied up Steven he pulled out a knife and started to tell Steven that he hated homosexuals. He then proceeded to stab him with the knife again and again.
Steven was still alive after the stabbings and Ricky went into the kitchen and got a kitchen knife and stabbed Steven in his throat all the time repeating that he hated homosexuals. He then proceeded to cut open Steven from sternum to scrotum.
Steven was still alive gasping for air. Rickys last horrific blow came when he cut off Stevens penis and shoved it into his mouth to quit his moans. Ricky then riffled through Stevens things taking some money and fleeing the scene.
Ricky returned home and told his wife what he had done. She quieted him and told him everything was going to be ok. There marriage seemed to go down hill following the murders. The both of them drank heavily and started using drugs. A few years later Sharon packed her things and left.
Ricky never heard from Sharon much, after she left. One night Rickys house was surrounded by police and he was arrested for capital murder for the death of Steven Fefferman. Ricky knew the day would come but he never knew it would be at the hands of Sharon the wife he loved.
Ricky was sentenced to death by lethal injection for the murder of Steven Fefferman. He got three life sentences, one for each murder. Sharon green only got 10 years probation for her part in the crimes. Love is a feeling no one can describe but is love worth all this?
Ricky Lee Green was put to death Oct. 8, 1997 for the December 1986 murder of advertising executive Steve Fefferman.
After Green was sentenced for the murder of Fefferman, he was tried for two other murders, and given life sentences for each. Green was suspected in at least 12 other murder cases throughout the state of Texas. “He left his mark all over the state,” Detective Daniel LaRue said.
The Fefferman case sparked so much media attention in Fort Worth, Texas, the trial had to change venue to Austin, Texas.
“The brutality of these crimes was is impossible to describe,” Prosecuting Attorney Marc Barta said. “With confessions, bloodstained knives and photographs, the likelihood of an acquittal was minimal.”
The evidence was so disturbing at times that some jurors had to leave the room. One woman excused herself to vomit. There were also reports of jury members seeking psychiatric care following the trial.
Referring to an article from the Dallas Morning News, “By the time Mr. Green met Mr. Fefferman, he had already established his killing technique: excessive stab wounds and sexual mutilation.”
On the phone, Barta revealed details about the Fefferman murder. “They (Green and Fefferman) met at a park close to a beach near Fort Worth. Green took Fefferman to his house, tied him up, mutilated and castrated him.”
Green reportedly left “his mark” at each murder scene.
“There were approximately 50 stab wounds to each victim. Some of the victim’s throats were cut. The male victim’s genitals were cut off and put in their mouths,” LaRue said.
Fefferman’s family desperately wanted a conviction in this case. Texas law at that time, however, did not sentence people to death for serial or mass killings.
“In order to receive the death penalty, Green had to kill his victim in the commission of another act,” Defense Attorney David Bays said. “Ricky didn’t kill Fefferman just so he could rob or rape him, he killed because it was something he liked to do.”
However, both Barta and LaRue agreed that Green had committed murder in the commission of another act. “During the confessions, Green admitted to taking things of value,” LaRue said.
The defense strategy to this case was that Green had been abused as a child. “Green’s father, Bill, poked him and his brother with cattle prods,” Bays said. “When Ricky was two-years-old, Bill would lock the boys in the closet and growl from the other side to scare the boys.” In the trial it was also revealed that Bill would try to drown the boys for punishment.
Barta refuted this testimony of child abuse, from Green’s brother and cousin, by first cross-examing them. Then, an expert witness testified that there is no correlation between child abuse and murder.
On Sept. 14, 1990, one year after being indicted for Fefferman’s murder, Green was convicted.
Appeals were made in an attempt to save his life. In January 1994, Green filed a state habeas relief, which was denied. On Oct. 3, 1997 Green was scheduled for execution, but was granted a brief stay until his inevitable death on Oct. 8.
Ricky Green’s last words were, “This to me is another killing and it’s not going to solve nothin’. I feel my punishment is over and now my friends and family have to suffer.”
Green, 36, was pronounced dead just seven minutes after the lethal dose was administered.
“A lot of what happened was a product of excess drinking and smoking dope. Almost everything he did was in an alcoholic haze,” Bays said. “Ricky was like a human bonsai tree, every time he would try to grow into a person, Bill Green would cut him down.
39 F.3d 582
In the Matter of Ricky Lee GREEN, Petitioner.
No. 94-50667.
United States Court of Appeals,
Fifth Circuit.
Nov. 28, 1994.
Petitions for Writs of Mandamus to the United States District Courts for the Northern and Western Districts of Texas.
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In this capital habeas corpus proceeding brought pursuant to 28 U.S.C. Sec. 2254, the petitioner, Ricky Green, has filed a petition for writ of mandamus that calls upon us to decide which federal district court or courts have jurisdiction. On the basis of a recent decision of this court, we conclude that there is jurisdiction in the Western and Southern Districts of Texas but not in the Northern District of Texas.
I.
In 1989, Green was indicted in Criminal District Court No. 4 of Tarrant County, Texas (a county within the Northern District of Texas), with the capital murder of Steven Fefferman. After jury selection began, the state withdrew its objection to Green's motion for change of venue, which the trial court then granted, and the case was transferred to Travis County, Texas (a county in the Western District of Texas), for trial in the 167th Judicial District Court of that county.
Following a jury trial, Green was found guilty of capital murder in 1990 and was sentenced to death. Venue then was transferred back to the Tarrant County court. The Texas Court of Criminal Appeals affirmed the conviction and sentence. Green v. State, No. 71,170 (Tex.Crim.App. Dec. 9, 1992) (unpublished), cert. denied, --- U.S. ----, 113 S.Ct. 3011, 125 L.Ed.2d 702 (1993). In January 1994, Green applied to the Tarrant County trial court for state habeas relief, which was denied. Ex parte Green, No. 26,331-01 (per curiam) (Tex.Crim.App. Apr. 19, 1994).
On August 16, 1994, the Tarrant County trial court scheduled Green's execution for October 4, 1994. On September 19, Green filed, in the Northern District of Texas, a motion for appointment of counsel and stay of execution.1 On September 21, the federal court appointed an attorney from the Texas Resource Center as Green's counsel but denied, without prejudice, the request for stay. The court directed Green to file a federal habeas petition by September 27 or tell the court, by that date, that he did not intend to file a petition.
On September 27, Green filed a notice of intent not to file a federal habeas petition. He also filed a motion to withdraw his motion for appointment of counsel and stay of execution, asking the court to rescind its orders made pursuant to that pro se filing and to dismiss the habeas proceeding.2 As justification for the motion, Green stated that his attorney had just discovered that the Northern District court was without jurisdiction. The court then ordered briefing on that issue.
On September 30, Green filed a second state habeas petition in the Tarrant County trial court. On October 3, the Court of Criminal Appeals adopted the trial court's recommendation and denied relief on the procedural ground that the court would not consider the petition while Green's case was pending in federal court. Ex parte Green, No. 26,331-02 (Tex.Crim.App. Oct. 3, 1994) (per curiam). On that same date, Green filed a notice of voluntary dismissal of the Northern District habeas proceeding pursuant to FED.R.CIV.P. 41(a)(1).
Also on October 3, at approximately 3:30 p.m., which was about nine hours before his scheduled execution, Green filed a federal habeas petition and motion for stay of execution in the Western District of Texas. The Western District court, on the state's motion, transferred the proceeding to the Northern District at approximately 5:00 p.m. that same day.
The state then announced that it had no objection to a stay of execution. In this court, Green filed a motion for stay of execution and mandamus actions seeking to compel the return of the case to the Western District. We then entered a stay of execution but took no action on the pending mandamus actions.
On October 4, the Northern District court entered an order concluding, on the basis of Dobard v. Johnson, 749 F.2d 1503 (11th Cir.1985), that the Western, Northern, and Southern Districts of Texas have concurrent jurisdiction to entertain a federal habeas petition from Green. Accordingly, the court reasoned, the transfer from the Western District to the Northern District was proper. The court ordered the state to respond to the federal habeas petition.3
II.
Federal habeas corpus jurisdiction is determined by 28 U.S.C. Sec. 2241(d), which reads as follows in regard to a state containing more than one federal judicial district:
[T]he application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.
Although Green is incarcerated in the Southern District of Texas, which indisputably would have jurisdiction under the statute's plain language, the only dispute here is in regard to jurisdiction in the Western and Northern Districts.
The controversy centers on the meaning of the words "the district within which the State court was held which convicted and sentenced " the criminal defendant. (Emphasis added.) Green argues that his case is controlled by this court's recent decision in Gosch v. Collins, 20 F.3d 1170 (per curiam) (table), No. 93-8635 (5th Cir. Apr. 6, 1994). We agree.
In Gosch, the petitioner was indicted in Bexar County (in the Western District of Texas) but was tried, convicted, and sentenced, on a change of venue, in Victoria County (in the Southern District of Texas). As here, the matter was returned to the county of indictment for post-trial proceedings. The petitioner filed his federal habeas petition in the Western District of Texas, whereupon the district court dismissed the petition for lack of subject matter jurisdiction.
On appeal, a panel of this court concluded that there was no jurisdiction in the Western District, because "under 28 U.S.C. Sec. 2241(d) ... jurisdiction for habeas corpus petitions for Petitioner Gosch lies only in the ... Southern District of Texas." This constitutes an interpretation of the words "within which the State court was held which convicted and sentenced him," to the effect that post-trial proceedings, following sentencing, are not to be considered in determining jurisdiction under Sec. 2241(d).
Accordingly, the present facts--and those in Gosch--are easily distinguished from the circumstance in Dobard, the authority principally relied upon by the state. There, as here, indictment was in a county within one federal district, but trial, on a change of venue, was in a county within a different federal district. Following trial, "some of the incidents of sentencing were, in the physical sense, done in one county, some in the other." 749 F.2d at 1505.4
The petitioner filed his federal habeas petition in the district wherein the indictment occurred. That district court transferred the proceeding to the district where the trial was held. On appeal from the transfer order, the Eleventh Circuit, referring to the "peculiar circumstances" of the case, held "that where substantial incidents of conviction and sentence are divided between two federal judicial districts, either district court is the court of conviction and sentence within the meaning of Sec. 2241(d) and has power to entertain the petition on its merits or transfer it." Id.
Obviously, the facts of the instant case are like those in Gosch and dissimilar to those in Dobard. We are bound by Gosch as the precedent of this court. Accordingly, we conclude that jurisdiction lies in the Western District of Texas and not in the Northern District of Texas.
We find it unnecessary, however, to issue a writ of mandamus at this time. The two district courts were dealing with a somewhat novel issue and, in good faith, attempted to comply with the law. We are confident that, in light of this opinion, they now will see to it that this matter is transferred to the Western District of Texas, which in turn will consider Green's habeas petition on the merits.
The petitions for writs of mandamus are DENIED without prejudice.
*****
1
Although the petition indicated that it was filed pro se, a representative of the Texas Resource Center acknowledged, in a subsequent telephone hearing transcribed in the record, that the Resource Center had helped Green prepare and file the federal petition
2
Green's rationale for requesting dismissal of the habeas proceeding, when no explicit request had been made for habeas relief, was that under McFarland v. Scott, --- U.S. ----, ---- - ----, 114 S.Ct. 2568, 2572-73, 129 L.Ed.2d 666 (1994), the filing of the motion for appointment of counsel constituted the initiation of a federal habeas proceeding
3
Green moved in this court for a stay of the Northern District proceedings pending our ruling on the mandamus petitions. We denied the motion on the ground that it had not been presented, in the first instance, to the district court. Green then moved for a stay in the Northern District. After that court denied the motion, Green once again requested that we grant a stay. We have now done so, and the Northern District proceedings are in abeyance pending our consideration of the jurisdictional issue presented in the mandamus petitions
4
The complicated course of proceedings between the two counties was as follows:
The murder ... occurred in Sumter County.... Dobard was indicted in ... Sumter County, and numerous pretrial motions were filed and heard in that court. [The trial court] transferred the trial ... to Marengo County.... Various pretrial motions were heard in Sumter County, but ... after the transfer ... all orders were entered by the Circuit Court of Marengo County. ... [T]he sentencing hearing ... was heard in Sumter County and petitioner was there orally sentenced.... The judge signed the sentencing order while in Marengo [County]. Dobard's motion for a new trial was received by the circuit clerk in Sumter [County] and then sent on to be filed in Marengo [County]. The hearing on the new trial motion was conducted in Sumter [County].
749 F.2d at 1505.
116 F.3d 1115
Ricky Lee Green, Petitioner-appellant,
v.
Gary L. Johnson, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-appellee
United States Court of Appeals, Fifth Circuit.
June 27, 1997
Appeal from the United States District Court for the Western District of Texas.
Before SMITH, DeMOSS and PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ricky Green appeals the denial of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 (West Supp.1997). Concluding that Green has failed to make a substantial showing of the denial of a federal right, we deny him a certificate of probable cause ("CPC") and vacate the stay of execution.
I.
In April 1986, Green was charged with the capital murder of Steven Fefferman. Following his arrest, Green provided the police with a statement concerning his relationship with Fefferman. According to Green, he had met Fefferman on the eve of the murder at Casino Beach, an area known to be frequented by homosexuals.
After a sexual encounter with Fefferman, Green dropped off his car at his own home and proceeded to Fefferman's home, where the two drank some beer and again engaged in sexual activity. After Green convinced Fefferman to allow him to tie Fefferman to the bed, Green stabbed Fefferman several times. Before leaving Fefferman's house, Green sexually mutilated Fefferman, ransacked the bedroom in search of money, and left in Fefferman's car.
II.
Following a jury trial,1 Green was convicted of capital murder and sentenced to death in September 1990. During the sentencing phase, the court admitted evidence of three other murders to which Green had confessed, which murders also involved beatings and mutilation of genitalia similar to those surrounding the Fefferman murder, and also Green's stalking a seventeen-year-old girl and assaulting two teenage boys.
Green was represented during pre-trial by court-appointed counsel Jeff Kearney and Suzie Johnson. Following a change of venue, Kearney withdrew and was replaced by David Bays. A third attorney, Kenneth Houp, also was appointed to assist in the pre-trial proceedings, although his role ended with the completion of jury selection. Green was represented throughout the trial by Bays and Johnson, on direct appeal by Johnson and Danny Burns, and on his first state habeas application by Robert Ford.
Green's conviction and sentence were affirmed on direct appeal. See Green v. State, No. 71,170 (Tex.Crim.App. Dec. 9, 1992) (en banc) (unpublished). The Court of Criminal Appeals later denied Green's application for habeas relief. See Ex parte Green, No. 26,331-01 (Tex.Crim.App. Apr. 19, 1994) (en banc) (per curiam).
In September 1994, Green filed, in the United States District Court for the Northern District of Texas, a pro se motion for appointment of counsel to file a federal habeas petition pursuant to 28 U.S.C. § 2254 and for a stay of execution. After the court granted Green permission to proceed in forma pauperis and appointed counsel, Green filed a motion to withdraw his pro se pleading on the ground that jurisdiction lay properly in the Western District of Texas.
Also in September 1994, Green filed a second state habeas petition in the Tarrant County trial court, which petition was also denied by the Court of Criminal Appeals. See Ex parte Green, No. 26,331-02 (Tex.Crim.App. Oct. 3, 1994) (en banc) (per curiam). Concurrently with that denial, Green filed a notice of voluntary dismissal of the Northern District habeas proceeding pursuant to FED. R. CIV. P. 41(a)(1), and filed a new petition in the Western District.
The Western District petition was transferred to the Northern District, the situs of the indictment, which transfer the Northern District concluded was proper under Dobard v. Johnson, 749 F.2d 1503 (11th Cir.1985). On appeal we reversed, concluding that, pursuant to Gosch v. Collins, 20 F.3d 1170 (5th Cir.) (per curiam), jurisdiction lay in the Western District. See In re Green, 39 F.3d 582 (5th Cir.1994).
In the Western District, Green asserted thirteen grounds for habeas relief, each of which had been exhausted in state court either on direct appeal or through the state post-conviction process. In July 1996, the district court reviewed de novo and adopted the findings of the magistrate judge to grant the state's summary judgment motion and to deny Green's habeas petition. Green filed his application for a CPC in August 1996. The district court, construing the CPC application as an application for a certificate of appealability ("COA"), denied the application in September 1996.
III.
A.
As a threshold matter, we must determine whether the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), governs the instant appeal. Although we have held previously that the standards of review set forth in the AEDPA apply to all habeas petitions that were pending on April 24, 1996, the date on which the President signed the bill into law, see Drinkard v. Johnson, 97 F.3d 751, 764-66 (5th Cir.1996), we now must conclude otherwise in light of Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
Among other things, the AEDPA amends § 2244 and §§ 2253-2255 of chapter 153 of title 28 of the United States Code, the provisions that govern all habeas proceedings in federal courts. See 110 Stat. 1217-21. The AEDPA also creates, for habeas proceedings against a state in capital cases, a new chapter 154 with special rules favorable to the state, but applicable only if the state opts in by agreeing to provide for the appointment of post-conviction counsel in state habeas proceedings. See 110 Stat. 1221-26.
Whereas the amendments to chapter 153 do not contain an effective date, the AEDPA provides expressly that the new chapter 154 "shall apply to [state capital] cases pending on or after the date of enactment of this Act." 110 Stat. 1226. In Lindh, the Court construes "this provision of § 107(c) ... as indicating implicitly that the amendments to chapter 153 were assumed and meant to apply to the general run of habeas cases only when those cases had been filed after the date of the Act." --- U.S. at ----, 117 S.Ct. at 2063.
As we have already noted, amended § 2254(d) (in chapter 153 but applicable to chapter 154 cases) governs standards affecting entitlement to relief. If, then, Congress was reasonably concerned to ensure that chapter 154 be applied to pending cases, it should have been just as concerned about chapter 153, unless it had the different intent that the latter chapter not be applied to the general run of pending cases.
Nothing, indeed, but a different intent explains the different treatment.
Id., --- U.S. at ----, 117 S.Ct. at 2064.
As we have stated, chapter 154 is apposite to capital cases only where states have elected to opt in and have qualified to participate by meeting the requirements of § 107. Because the State of Texas has not yet qualified for the expedited procedures governing habeas petitions in capital cases, see Carter v. Johnson, 110 F.3d 1098, 1104 (5th Cir.1997), chapter 154 does not apply to the instant case.2 Thus, in light of Lindh 's explication that "the negative implication of § 107(c) is that the new provisions of chapter 153 generally apply only to cases filed after the act," --- U.S. at ----, 117 S.Ct. at 2068, and given that Green filed the instant petition before the April 24, 1996, effective date of the AEDPA, we apply pre-AEDPA habeas law to his claims.
B.
Before the advent of the AEDPA, a petitioner could not appeal a district court's ruling on a habeas petition that concerned detention arising from state court proceedings unless a district or circuit judge issued a CPC. 28 U.S.C. § 2253; see also Baldree v. Johnson, 99 F.3d 659, 660 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1489, 137 L.Ed.2d 699 (1997). To obtain a CPC, the petitioner must 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) (internal quotes and citation omitted). Such a showing requires a demonstration "that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further." Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4.
Section 102 of the AEDPA amended 28 U.S.C. § 2253 to require that a petitioner obtain a COA. See 28 U.S.C. § 2253(c)(1). A COA may be issued only where the applicant has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Notwithstanding the slightly different wording between the pre-AEDPA and the amended § 2253, we have noted previously that the AEDPA was intended to codify the Barefoot standard and thus that the standard governing the issuance of a COA requires the same showing as that for obtaining a CPC. See Drinkard, 97 F.3d at 756. Nonetheless, because Green's habeas petition was filed with the district court before April 24, 1996, Lindh compels that we review his petition for a CPC under the pre-AEDPA jurisprudence.
Under the pre-AEDPA standards, state court findings are entitled to a presumption of correctness unless, among other things, the petitioner demonstrates that the state courts failed to resolve the claims on the merits. See Livingston v. Johnson, 107 F.3d 297, 302 (5th Cir.1997). Because Green argues that the state failed so to adjudicate his claims, we must determine initially whether a state court has disposed of Green's claims on the merits.3
Green argues that the state habeas courts' "perfunctory disposition" is not a resolution on the merits because, he alleges, the petitions were denied without an evidentiary hearing4 "and without reference to any factual or legal issue presented." According to Green, the resolution-on-the-merits prerequisite is a proxy for the quality of the legal process of resolving a dispute; the court's treatment of the petitions must evince a "careful consideration of the constitutional claims" and a thorough and meaningful substantive evaluation of the claims.
We disagree both with Green's proffered construction of the merits inquiry and with his contention that the state courts did not adjudicate his habeas claims on the merits. "Resolution on the merits" is a term of art in the habeas context that refers not to the quality of a court's review of claims, but rather to the court's disposition of the case--whether substantive or procedural. See Preston v. Maggio, 705 F.2d 113, 116 (5th Cir.1983). We must inquire, on a case-by-case basis, whether a resolution was on the merits, considering the following factors: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state courts' opinions suggest reliance upon procedural grounds rather than a determination of the merits. See id.
A careful review of the state courts' opinions denying Green habeas relief reveals that his claims were in fact disposed of on the merits. In denying Green's first state habeas petition, the Court of Criminal Appeals acknowledged that he presented "fourteen (14) allegations in which he challenges the validity of his conviction or sentence. The trial court recommended the relief sought be denied. This Court has reviewed the record. We agree with the trial court's recommendations and accordingly deny habeas relief."
The trial court memorandum to which the Court of Criminal Appeals refers indicates that the trial court considered Green's allegations, the state's reply, the case record, and the evidence presented by both parties before determining that habeas relief be denied. Neither the trial court's nor the Court of Criminal Appeals's order makes mention of procedural grounds for denying relief, nor has Green brought any to our attention.
With respect to Green's second habeas petition, the trial court memorandum, again to which the Court of Criminal Appeals refers in denying relief, not only indicates that "[Green's] assertions in his application for writ of habeas corpus are without merit," but specifically excludes any reliance upon procedural grounds for denying relief. The trial court concluded expressly (1) "that it is not barred from ruling upon the merits of [Green's] claim by the pendency of [his] motion to dismiss in Federal District Court" and (2) that "[Green] is not procedurally barred from seeking relief on the merits of his claim." The Court of Criminal Appeals, after reviewing the record on its own, referenced the trial court's memorandum and "agree[d] with the trial court's recommendation and, accordingly, denie[d] all requested habeas corpus relief."
We are confident, therefore, that Green's habeas claims were resolved on the merits, as opposed to having been disposed of on non-merits-based, procedural grounds; the presumption of correctness therefore applies. See Livingston, 107 F.3d at 302-03.
IV.
A.
Green alleges that his counsel's performance at both the trial and sentencing phases was ineffective because, after having conscripted an expert (Dr. Richard Rappaport) and considered carefully his conclusions, they decided not to put on an insanity defense. Green argues that his counsel's reasons for not presenting the defense are unclear from the record; that the internal conflict within the defense team precludes a finding that the rejection of Rappaport's defense was trial strategy; and that counsel's decision was based in part upon an erroneous interpretation of the law concerning whether presentation of the defense would have opened the door to the cross-examination of Rappaport about additional incriminating information--namely, fifteen other murders to which Green confessed to Rappaport.
To establish ineffective assistance of counsel, Green must demonstrate both deficient performance and prejudice resulting from that deficiency. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). We compare counsel's performance to an objective standard of reasonableness, mindful of the strong presumption of adequacy. We will not find inadequate representation merely because, with the benefit of hindsight, we disagree with counsel's strategic choices. See id. at 689-90, 104 S.Ct. at 2065-66. "A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983) (on rehearing). Because an ineffective assistance claim is a mixed question of law and fact, we review the district court's decision de novo. See Salazar v. Johnson, 96 F.3d 789, 791 (5th Cir.1996). As we noted above, findings of fact are entitled to a presumption of correctness. See Washington, 466 U.S. at 698, 104 S.Ct. at 2070.
Applying the prejudice prong in the context of counsel's performance at sentencing, we ask whether the petitioner has demonstrated "a 'reasonable probability' that the jury would not have imposed the death sentence in the absence of errors by counsel." Carter, 110 F.3d at 1110. Failure to establish either prong defeats the claim. See Lincecum v. Collins, 958 F.2d 1271, 1278 (5th Cir.1992).
Kearney averred that he hired Rappaport to examine Green and that, based upon Rappaport's conclusions that Green was in fact legally insane at the time of the Fefferman murder, he intended to make full use of Rappaport's findings during the trial and sentencing phases. After the change of venue, Kearney left the defense team and was replaced by Bays, at which time conflicts began to arise between Johnson and Bays. According to Johnson, Bays wished to use Rappaport's testimony to establish that Green's insanity turned him into a "serial killer." Believing that such a tactic would add to the state's showing of "future dangerousness" during the punishment phase of the trial, Johnson disagreed with the decision to place Rappaport on the stand, and Johnson and Bays ultimately agreed to abandon the insanity defense.5
Green contends that the internal wrangling between Johnson and Bays renders suspect their decision not to present an insanity defense. Although the record does demonstrate that conflict existed, Green has proffered no evidence tending to prove that the decision not to place Rappaport on the stand was infected impermissibly with whatever personal disagreements there were. To the contrary, Johnson and Bays proffered the other valid tactical reasons we have mentioned.6
Even assuming arguendo that Johnson and Bays erred in concluding that Rappaport's testimony would have opened the door to additional incriminating evidence, this error alone does not give rise to a constitutional ineffectiveness claim. See Moreno v. Estelle, 717 F.2d 171, 176 (5th Cir.1983) (noting that the Sixth Amendment does not guarantee an accused "errorless representation"). There is sufficient evidence demonstrating that the decision not to proffer an insanity defense was a "conscious and informed" tactical one. See Garland, 717 F.2d at 206.7 No reasonable jurist would disagree, and Green has not made a substantial showing of the denial of a constitutional right.
Green's reliance on Bouchillon v. Collins, 907 F.2d 589 (5th Cir.1990), and Profitt v. Waldron, 831 F.2d 1245 (5th Cir.1987), is misplaced. In Bouchillon, we concluded that counsel was ineffective in failing to offer an insanity defense because (1) it was the only defense available to the defendant; and (2) although counsel was aware that the defendant had been committed previously to mental institutions, he did not ask for a psychiatric evaluation or conduct any other investigation. 907 F.2d at 597. We concluded the same in Profitt after also noting both that the defendant had only the insanity defense available to him and that, although counsel was aware that the defendant had escaped previously from a mental institution, counsel failed to investigate his client's sanity, which investigation would have revealed that the defendant had been adjudicated insane by an Idaho court only months before the instant trial. See Profitt, 831 F.2d at 1249. Furthermore, we gave minimal deference to the Profitt counsel's tactical decision not to employ the insanity defense, as we could ascertain no advantage attendant to abandoning the defense. See id.
Not only did Green's counsel investigate fully the possibility of putting on an insanity defense (including conscripting Rappaport to prepare a report based on extensive interviews with Green and reviewing the contents of that report), but they considered various tactical reasons attendant to their decision to present or abandon the defense. Furthermore, the defense was not the only one available to Green; his counsel presented a defense that he lacked the requisite mens rea to commit the underlying felony.
With respect to Green's claim that he was denied effective assistance of counsel at the sentencing phase because his counsel failed to present the Rappaport findings, we similarly find no constitutional error. According to Green, the decision to forego this testimony prevented the jury from receiving an explanation of the nexus between his mitigating evidence of child abuse, severe mental illness, and brain damage and his actions in killing Fefferman. Johnson indicated, however, that she believed that the effects of this evidence on the "future dangerousness" prong of the Texas capital murder jury questions would "100% guarantee[ ]" that Green would receive the death penalty. Furthermore, the defense did present, through Dr. Randall Price, evidence of Green's abusive childhood and mental disorders and their effects upon his ability to conform his behavior to acceptable levels.8 Thus, we agree with the district court that Green has not made a substantial showing of the denial of a federal right with respect to his counsel's decisions not to use Rappaport's testimony.
B.
Green asserts that his counsel were ineffective in failing to cross-examine Robert Ressler effectively during the punishment phase of the trial. Ressler was a state witness who testified that he had been involved in the largest survey of serial murderers ever conducted and that, based upon this experience, he considered Green to be an "organized serial killer."
Although Johnson avers that she had prepared to cross-examine Ressler, Bays decided, on the spur of the moment, to conduct the cross-examination without having done sufficient investigation or preparation. Bays did question Ressler concerning his credentials, his understanding of Texas law, how potential affiliations affected his impartiality, and his understanding of the connection between abused children and serial killers. Green contends that had Ressler been cross-examined properly, he could have (1) challenged Ressler's conclusions that he posed a continuing risk of future danger, (2) demonstrated that his research methods were unreliable and inaccurate, and (3) shown that Ressler's own writings suggest a link between the traumatic childhoods of serial killers and their subsequent murders.
Assuming arguendo that the cross-examination of Ressler was deficient, Green has failed to demonstrate "a 'reasonable probability' that the jury would not have imposed the death sentence in the absence of errors by counsel." Carter, 110 F.3d at 1110. First, Ressler testified during the rebuttal portion of the punishment phase, at which time the jury already had heard in detail about three other similarly-situated murders to which Green had confessed. Thus, to the extent that Ressler testified regarding Green's future dangerousness, Green has failed to disentangle the effects of evidence of the other murders from Ressler's more abstract research-based testimony. That is, even assuming that the proffered cross-examination of Ressler would have destroyed his credibility with the jury, Green has not demonstrated a reasonable probability of prejudice.
Second, not only did Bays's cross-examination of Ressler elicit some support for the defense's primary theory that Green's behavior was a product of his abusive childhood, but Green also had presented Price's testimony to that effect during the punishment phase, as well as other corroborative testimony during the guilt phase. Again, Green has not demonstrated sufficiently that eliciting Ressler's further agreement with the defense theory would have enhanced, with sufficient probability, the jury's acceptance of the defense's underlying theory. Reasonable jurists would not find the issue debatable, and therefore Green has not made a substantial showing of the denial of a federal right.
V.
A.
Green contends that he was denied his constitutional right to be present at all phases of his trial when he was denied access to an ex parte hearing among his counsel and the judge, during which the court entertained Johnson's oral motion to withdraw from representation. Green concedes that his absence from the hearing does not infringe upon his confrontation right but argues that it offends his due process right to a fair trial.
A defendant has a right to be present at a proceeding "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (per curiam) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)). His absence from such a proceeding amounts to a due process violation only "to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Snyder, 291 U.S. at 108, 54 S.Ct. at 333.
The oral motion to withdraw was made and discussed during an ex parte conference in chambers (in the course of jury voir dire) and centered on disagreements between Johnson and Bays. According to Johnson's affidavit, her relationship with Bays had deteriorated to the point that they no longer conferred directly regarding the case, but rather communicated through Houp only. Johnson expressed her frustrations regarding this situation to the court and requested that she be permitted to withdraw from representation. The court denied the motion, and, although stating that it would keep the motion under advisement in the event that the working relationship continued to worsen, the matter was not raised again.
Although Green protests that he was prejudiced by his exclusion from the meeting, we fail to see how his absence thwarted the fairness and just treatment of the issues at the ex parte communication or with respect to his overall representation. Green contends that had he been present, "he could have provided the trial court with important information about the conflict that would have effected [sic] the court's ruling." But, Green does not give us the contents of such information or the effect it would have had on the ruling.
Furthermore, we reject Green's suggestion that his absence from this meeting prevented him from becoming aware of any disputes between his counsel and thus from exercising his right either to take over his own defense or to request new counsel. Not only did Johnson admit in her affidavit that "the animosity between Mr. Bays and me was clear to everyone in the courtroom," thus calling into question Green's protested ignorance, but we also do not believe Green has made a substantial showing that he was denied effective assistance because of his inability personally to request a change of counsel that the court denied upon request from Johnson. See Bass v. Estelle, 696 F.2d 1154, 1158-59 (5th Cir.1983).
B.
Green argues further that the failure of his counsel on direct appeal to raise the issue of his absence from this hearing denied him the effective assistance of counsel on direct appeal. To this end, Green relies upon TEX.CODE CRIM. PROC. ANN. art. 33.03 (Vernon 1986) and Adanandus v. Texas, 866 S.W.2d 210, 216-19 (Tex.Crim.App.1993). Assuming arguendo that Green's absence from the meeting ran afoul of art. 33.03, Adanandus counsels that harmless error analysis applies to the statutory violation. See id. at 219. Adanandus instructs further that the harmless error analysis is informed by the Snyder "reasonably substantial relationship" test. Thus, because we reject Green's Snyder claim with respect to his absence from the hearing, we conclude similarly that any error of his counsel on direct appeal was harmless.
VI.
Green avers that his direct appellate counsel's failure to raise the issue of the exclusion for cause of veniremember Harren deprived him of effective assistance. At trial, Green's attorney objected to the exclusion of Harren, arguing that it is impermissible to grant a challenge for cause where a juror is unable to answer affirmatively the second special issue on the facts of the capital offense alone. The trial court correctly overruled Green's motion, relying upon Marras v. Texas, 741 S.W.2d 395 (Tex.Crim.App.1987) (en banc).
At the time of Green's appeal, Marras was the controlling precedent, and Green's appellate counsel therefore decided not to raise Harren's exclusion for cause on direct appeal. The Court of Criminal Appeals affirmed Green's conviction on December 9, 1992, and his motion for rehearing, filed on December 13, was denied on February 12, 1993. On January 13, 1993, the Court of Criminal Appeals decided Garrett v. Texas, 851 S.W.2d 853 (Tex.Crim.App.1993) (en banc), overruled Marras, and held that a veniremember is not subject to a challenge for cause merely because he indicates that he would require more evidence than the legal minimum in order to answer special issue two affirmatively. 851 S.W.2d at 860-61. Garrett did not become final and binding on lower courts until rehearing was denied on April 21, 1993. See Thorpe v. Texas, 863 S.W.2d 739, 741 n. 5 (Tex.Crim.App.1993) (en banc).
Green does not dispute that Marras governed his appeal but contends that his appellate counsel was deficient for failing to raise the Marras issue both on his original appeal and during the pendency of Green's rehearing petition, but before Garrett became final. With respect to the former claim that Green's counsel should have raised the Marras issue on his original appeal, we have noted previously that there is no general duty on the part of defense counsel to anticipate changes in the law, see Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. Unit A Apr.1981), and that counsel is not ineffective for failing to raise a claim that Texas courts have rejected repeatedly. See Andrews v. Collins, 21 F.3d 612, 623 (5th Cir.1994). Because it is undisputed that Marras was controlling authority at the time of Green's original appeal, Green has not made a substantial showing that his appellate counsel's failure to raise the Marras issue in the original appeal denied him effective assistance.
We also reject Green's ineffectiveness claim stemming from counsel's failure to assert Garrett during the pendency of his rehearing petition, but two months before Garrett became final. Counsel is not deficient for failing to raise every meritorious claim that may be pressed on appeal. See Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.1989).
The only record evidence submitted by Green on this issue is an affidavit by Burns, one of Green's direct appellate counsel, stating, "I reviewed the record and identified what is now known as Garrett error. I also noted that the error was properly preserved. Neither my co-counsel, Suzie Johnson, nor I raised the issue on appeal." Given that Garrett was not yet final and that Burns and Johnson had identified the issue as one they did not wish to press on appeal, their performance was not constitutionally deficient. See Washington, 466 U.S. at 688-94, 104 S.Ct. at 2064-68.
VII.
Green contends that the trial court erred in failing to admit the testimony of Dr. John Marquart during the punishment phase. Marquart testified on voir dire that he had conducted a study of capital prisoners whose sentences had been commuted, in which he compared those prisoners to murderers who had received life imprisonment. His comparisons revealed that many of the prisoners whom juries had found to pose a threat of future dangerousness (special issue two) in fact posed no such threat. As a result, Marquart concluded that it is difficult, if not impossible, to determine whether a particular defendant poses a direct threat of future danger. Marquart opined further that he did not believe that the death penalty deterred crime; that studies indicated that a short-term increase in crime accompanies an execution; and that there is little correlation between the operation of the death penalty and the number of homicides in Texas.
The sentencer in a capital case must be permitted to consider any constitutionally relevant mitigating evidence, see Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982), which is evidence "directly related to the personal culpability of the criminal defendant," Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989). "Only then can we be sure that the sentencer has treated the defendant as a 'uniquely individual human bein[g]' and has made a reliable determination that death is the appropriate sentence." Id. (quoting Woodson v. North Carolina, 428 U.S. 280, 304-05, 96 S.Ct. 2978, 2991-92, 49 L.Ed.2d 944 (1976)). It is error to exclude evidence opining that the defendant would not commit acts of violence in the future. See Robinson v. Texas, 548 S.W.2d 63, 66 (Tex.Crim.App.1977) (en banc).
The state court determined on direct appeal that, because Marquart's proffered testimony related only to a generalized critique of the accuracy of the future dangerousness prediction, and not to Green's own future dangerousness or to Green's individualized assessment of punishment, it was properly excluded. We do not believe that the state court's factual findings were clearly erroneous, nor do we find any legal error.
VIII.
Green has failed to make a substantial showing of the denial of a federal right. Accordingly, we DENY a CPC and VACATE the stay of execution.
*****
1
Although Green was indicted originally in Tarrant County, Texas, in the Northern District of Texas, the case was transferred, at Green's request, to Travis County, Texas, in the Western District of Texas. Following the trial, venue was transferred back to Tarrant County
2
Carter, Drinkard, and the rest of the post-Drinkard AEDPA progeny presumably remain precedent in this circuit post-Lindh to the extent that they interpret the provisions of the AEDPA and do not conflict with Lindh 's conclusion that the chapter 153 amendments do not apply retroactively
3
Green argued originally that, under the AEDPA jurisprudence, his claim has not been "adjudicated on the merits" and thus was not amenable to state court deference. Because Lindh requires that we construe his habeas petition under pre-AEDPA law, we treat his "adjudication on the merits" argument as one challenging the sufficiency of the merits resolution of his petitions in state court, pursuant to the former 28 U.S.C. § 2254(d)(1) & (2)
4
We consistently have upheld the validity of paper hearings in state habeas proceedings. See Livingston, 107 F.3d at 303
5
The following exchange of notes between Johnson and Green during jury selection illustrates Johnson's tactics:
Green: "[T]ell me something Ms. Johnson, did you drop the insanity plea just to save the state money or did ya'll have something against Mr. Rappaport or is there something else"?
Johnson: "We dropped it because Rappaport's testimony would let the jury know you said you killed Wendy Robinson, some woman in Florida, and 15 other people. That proves the 'future dangerousness' question # 2. I will not prove my client's future dangerousness. I will not prove up a murder (Wendy) where my client is a suspect. # 2 Rappaport's conclusion that you were insane is too shallow. # 3 if Rappaport testified you are 100% guaranteed D.P."
6
In a draft report concerning his interviews with Green, Rappaport describes three other murders to which Green confessed, each involving similar stabbing and mutilation as accompanied the Fefferman murder. Green also told Rappaport that he had killed 15 other people and that he believed that he was doing the country a favor by killing "whores" and homosexuals
7
Green's contention that Martinez-Macias v. Collins, 810 F.Supp. 782 (W.D.Tex.1991), aff'd, 979 F.2d 1067 (5th Cir.1992), compels otherwise is incorrect. The deficiency in Martinez-Macias was counsel's complete failure to investigate the legal basis for a decision not to introduce certain evidence. Id. at 798 n. 23. Green does not allege that his counsel failed to investigate Texas law on the admissibility of the other 15 murders but rather that, after researching the law, his counsel misunderstood the application of the law to the instant facts. Absent more, these allegations do not rise to the level of constitutional ineffectiveness
8
Green also presented, during the trial phase, substantial mitigating evidence that described a litany of abusive actions he suffered at the hands of his father while growing up
Classification: Serial killer
Characteristics: Bisexual - Rape - Sexual mutilation
Number of victims: 4 - 12
Date of murders: 1985 - 1986
Date of birth: December 27, 1960
Victims profile: Jeffrey Davis, 16 / Steven Fefferman, 28 / Sandra Bailey, 27 / Betty Jo Monroe, 28
Method of murder: Stabbing with knife / Beating with a hammer
Location: Tarrant County, Texas, USA
Status: Executed by lethal injection in Texas on October 9, 1997
Date of Execution:
October 8, 1997
Offender:
Ricky Lee Green #984
Last Statement:
I want to thank the Lord for giving me this opportunity to get to know Him. He has shown me a lot and He has changed me in the past two months.
I have been in prison 8½ years and on Death Row for 7, and I have not gotten into any trouble. I feel like I am not a threat to society anymore. I feel like my punishment is over, but my friends are now being punished.
I thank the Lord for all He has done for me.
I do want to tell the…
Ricky Lee GREEN
Serial killer Ricky Lee Green, 36, was pronounced dead on October 9, 1997, after being lethally injected by prison authorities in Huntsville, Texas. "Now we can go on and not have to worry about him getting out and hurting anyone else,'' said Shirley Bailey, the sister of one of his known victims.
Speaking quietly and slowly, Green turned to four relatives of his victims and said he was sorry. "This to me is another killing and it's not going to solve nothing. I feel my punishment is over and now my friends and family are being punished." Executioners had trouble finding "a suitable vein," thanks to Ricky's fondness for intravenous drugs. Before dying the convicted killer reminded onlookers that he had been a model prisoner while on Death Row.
The one-eyed radiator repairman was condemned to death for the Dec. 27, 1986, murder of Steven Fefferman, an advertising executive for a Fort Worth television station. Fefferman, 28, was castrated and repeatedly stabbed with a butcher knife at his home after having sex with Green.
He also admitted killing three people in 1985, including a 16-year-old boy who was also castrated and stabbed Green had been sentenced to life prison terms for two of the other killings.
Fort Worth police Detective Danny LaRue asked Green at the time of his arrest why he killed, his reply was: "They all deserved it. They were kind of the dregs of society." LaRue believes eight other unsolved murders in North Texas bear Green's trademarks.
Convicted Serial Killer Is Executed in Texas
The New York Times
October 9, 1997
A convicted serial killer tied to four murders in Texas and suspected of at least eight more deaths was executed today for a sexual mutilation slaying almost 11 years ago.
The inmate, Ricky Lee Green, 36, was pronounced dead at 6:31 P.M., central daylight time, seven minutes after a dose of lethal drugs was released into his right arm.
In his final statement, Mr. Green thanked ''the Lord above,'' his friends and his fellow death-row inmates. He also noted that he had been in prison for eight and a half years, the last seven on death row, and had caused no trouble.
Mr. Green addressed four relatives of his victims, who watched through a window a few feet away, and said he was ''really sorry, but this to me is another killing and it's not going to solve nothing.''
As the lethal solution took effect, he gasped several times before he stopped breathing. Only one needle was used on Mr. Green instead of the customary two. Prison officials were unable to locate a suitable vein in the left arm of the longtime drug user.
Mr. Green, a radiator repairman portrayed by prosecutors as a psychopath, was condemned for the Dec. 27, 1986, death of Steven Fefferman, an advertising executive with Fort Worth television station KXAS.
Ricky Lee Green
In his final statement, Green thanked "the Lord above" and noted that he had been in prison for 8 years and caused no trouble.
"I feel I'm not a threat to society no more," he said, speaking quietly and slowly. "I feel my punishment is over and now my friends and family are being punished."
Turning to 4 relatives of his victims, who watched through a window a few feet away, Green said he was "really sorry, but this to me is another killing and it's not going to solve nothing."
Green, a 1-eyed radiator repairman, was condemned for the Dec. 27, 1986 death of Steven Fefferman, an advertising executive with Fort Worth television station KXAS.
Fefferman, 28, was castrated and repeatedly stabbed with a butcher knife at his home after he and Green had sex, according to testimony at Green's trial.
"He's real cold," said former Fort Worth police Detective Danny LaRue. "When I finally got through with the confessions and asked him why he killed these people, his reply was: "They all deserved it. They were kind of the drugs of society."
Green was sentenced to life prison terms for 2 other killings.
Jeffrey Davis, 16, was castrated and stabbed like Fefferman in April 1985. His nearly decapitated body was found in a swamp at the Fort Worth Nature Center.
Sandra Bailey, 27, who met Green in a country-western bar in November 1985, died from stab wounds and hammer blows to the head. Her body was dumped in a ditch.
He also confessed to killing 28-year-old Betty Jo Monroe of Amarillo, a topless dancer who was hitchhiking in Fort Worth in October 1985 when she was picked up by Green. She had been stabbed, mutilated and beaten in the head with a hammer.
LaRue, now retired and working as a private detective, said 8 other unsolved murders in North Texas bear Green's trademarks.
Ricky Lee Green & Sharon Dollar Green
Ricky lee green was horribly abused by his father and grandfather for many years. His father was abusive in ways no human could ever imagine. At the age of six ricky lee greens father bill green forced his son to run from the porch where his father sat with a bb gun. At the count of ten he was told to run while his father shot at him hitting him with the small metal bb's. The six year old tried to out run the bb's but it was no use he was hit everytime. The only comment he ever heard form his father was maybe you better learn to run faster.
This is only one example of his life long abuse by his father. there were other kinds of abuse that he endured like beatings,verbal abuse,and sexual abuse. From the time he was born all Ricky Green ever remembered hearing from his father was how he was no good and never would be. Ricky Green on several occasions in his
Childhood was sent to stay with his grandfather who sexually sodimized him time after time. Ricky could never understand if they were supposed to love him why they always hurt him.
On february 18, 1984 Ricky married Mary Francis. Ricky felt that she was the closest he had to a normal family. there relationship was based solely on sex.
There marriage started to deteriorate after only two months. Ricky suspected that mary sought sexual satisfaction from others. Ricky was very unhappy. He drank a lot and drove around to escape reality. One night when Mary got home from work Ricky was sitting in the livingroom heavily drinking. he pulled a knife on her and raped her. When he passed out she grabbed her belongings and left never to return.
A couple of weeks later ricky met a women by the name of Sharon Dollar. There first night together was all sex and booze. Three days after Ricky and Sharon were together she asked him to move in with her and he said yes. Although Ricky was happier with sharon then he had ever been in his life his drinking steadily increased.
One night in the middle of hot passionate sex Sharon pricked Ricky's penis with a needle longing for the taste of blood. Ricky at first objected to the pain but it was to late she was already sucking the blood from his penis relieving his pain. This was the first time Ricky noticed Sharon's pleasure for blood.
The first victim of Ricky was a teen by the name of Jeffrey Davis. Ricky had met davis before and invited him to hang out with him since Sharon was out of town.
The two went driving around. Ricky made a stop to urinate, when he returned he found Davis in the passenger seat masterbating. Davis asked Ricky if he'd like to touch him and Ricky got mad and beat Davis. they continued to drive around and the more Davis complained the more Ricky beat him until finally Ricky pulled
Over to a secluded area and dragged Davis out of the car beating him and mutilating Davis with a knife. Ricky killed Davis and proceeded to cut off his penis and toss it into the nearby lake. He then disposed of the body in a secluded area nearby.
On september 20, 1980 Ricky and Sharon Dollar married. The next victim was for the sexual pleasure of now husband and wife Ricky and Sharon Green. Ricky was driving along the road when he spotted a women hitchhiking. He pulled over to give her a ride. The women stuck her head in the window and said her name was montana. Ricky asked her if she would like to take a shower and get cleaned up.
She agreed and they went back to his house. As Montana was taking a shower he went into the bathroom and opened the shower curtain and asked her if he could join. The two had sex in the shower and it continued on into the bedroom. He then told her it was time to pick up his wife from work.
When he arrived to pick up Sharon she was surprised to see a women in the car. When they got back to the house ricky propositioned sharon with the idea that all three have sex. They agreed and went into the bedroom. When Sharon appeared naked at the doorway Montana changed her mind, but it was to late the two already had there minds set.
Ricky and Sharon tied Montana to the bed. Montana kicked and screamed. The two soon tired of her and drug her to the bathroom where Ricky tried to sodimize Montana.
Sharon went to the kitchen to retrieve a knife. Without warning Sharon thrust the knife into Montana. Ricky went into the bedroom to get his pocket knife. When he returned he saw Montana try to get up so he stabbed her again and again. Ricky again left to get a large hammer. He then bashed her head in three or four times. Sharon wanted to try it also so she then to hit Montana in the head. Montana was dead and they just stood there looking at what they had done.
With the dead corpse lying there and blood all over the walls Ricky leaned over and started to fondle Sharons breast. Sharon immediately got turned on and Sharon and Ricky had the most powerful sex in the blood of there victim. Afterwards they proceeded to clean the bathroom and load the corpse into the trunk of their car to dispose of the body. They took her to a secluded area and dumped her.
Rickys next victim was a women by the name of Sandra Bailey. He met her at a club he frequented. He took her back to his house where his wife was waiting.
When Sandra saw Rickys wife she wanted to go home. The two tied her up and proceeded to carry out the same scenerio they did with Montana. The only thought the two had afterwards was that the sex was not as powerful as it was the first time. They took the body and disposed of it in the same fashion they did Montana.
Rickys final victim was a man by the name of Steven Fefferman. Ricky met Feeferman in a parking lot frequented by homosexuals.
Ricky agreed to go back to Stevens home with him. When they arrived Steven started to fondle Ricky in the livingroom. Steven excused himself to take a shower.
When he returned he found Ricky in the bedroom. Ricky asked Steven if he could tie him up and each would take a turn at being tied up. After Ricky tied up Steven he pulled out a knife and started to tell Steven that he hated homosexuals. He then proceeded to stab him with the knife again and again.
Steven was still alive after the stabbings and Ricky went into the kitchen and got a kitchen knife and stabbed Steven in his throat all the time repeating that he hated homosexuals. He then proceeded to cut open Steven from sternum to scrotum.
Steven was still alive gasping for air. Rickys last horrific blow came when he cut off Stevens penis and shoved it into his mouth to quit his moans. Ricky then riffled through Stevens things taking some money and fleeing the scene.
Ricky returned home and told his wife what he had done. She quieted him and told him everything was going to be ok. There marriage seemed to go down hill following the murders. The both of them drank heavily and started using drugs. A few years later Sharon packed her things and left.
Ricky never heard from Sharon much, after she left. One night Rickys house was surrounded by police and he was arrested for capital murder for the death of Steven Fefferman. Ricky knew the day would come but he never knew it would be at the hands of Sharon the wife he loved.
Ricky was sentenced to death by lethal injection for the murder of Steven Fefferman. He got three life sentences, one for each murder. Sharon green only got 10 years probation for her part in the crimes. Love is a feeling no one can describe but is love worth all this?
Ricky Lee Green was put to death Oct. 8, 1997 for the December 1986 murder of advertising executive Steve Fefferman.
After Green was sentenced for the murder of Fefferman, he was tried for two other murders, and given life sentences for each. Green was suspected in at least 12 other murder cases throughout the state of Texas. “He left his mark all over the state,” Detective Daniel LaRue said.
The Fefferman case sparked so much media attention in Fort Worth, Texas, the trial had to change venue to Austin, Texas.
“The brutality of these crimes was is impossible to describe,” Prosecuting Attorney Marc Barta said. “With confessions, bloodstained knives and photographs, the likelihood of an acquittal was minimal.”
The evidence was so disturbing at times that some jurors had to leave the room. One woman excused herself to vomit. There were also reports of jury members seeking psychiatric care following the trial.
Referring to an article from the Dallas Morning News, “By the time Mr. Green met Mr. Fefferman, he had already established his killing technique: excessive stab wounds and sexual mutilation.”
On the phone, Barta revealed details about the Fefferman murder. “They (Green and Fefferman) met at a park close to a beach near Fort Worth. Green took Fefferman to his house, tied him up, mutilated and castrated him.”
Green reportedly left “his mark” at each murder scene.
“There were approximately 50 stab wounds to each victim. Some of the victim’s throats were cut. The male victim’s genitals were cut off and put in their mouths,” LaRue said.
Fefferman’s family desperately wanted a conviction in this case. Texas law at that time, however, did not sentence people to death for serial or mass killings.
“In order to receive the death penalty, Green had to kill his victim in the commission of another act,” Defense Attorney David Bays said. “Ricky didn’t kill Fefferman just so he could rob or rape him, he killed because it was something he liked to do.”
However, both Barta and LaRue agreed that Green had committed murder in the commission of another act. “During the confessions, Green admitted to taking things of value,” LaRue said.
The defense strategy to this case was that Green had been abused as a child. “Green’s father, Bill, poked him and his brother with cattle prods,” Bays said. “When Ricky was two-years-old, Bill would lock the boys in the closet and growl from the other side to scare the boys.” In the trial it was also revealed that Bill would try to drown the boys for punishment.
Barta refuted this testimony of child abuse, from Green’s brother and cousin, by first cross-examing them. Then, an expert witness testified that there is no correlation between child abuse and murder.
On Sept. 14, 1990, one year after being indicted for Fefferman’s murder, Green was convicted.
Appeals were made in an attempt to save his life. In January 1994, Green filed a state habeas relief, which was denied. On Oct. 3, 1997 Green was scheduled for execution, but was granted a brief stay until his inevitable death on Oct. 8.
Ricky Green’s last words were, “This to me is another killing and it’s not going to solve nothin’. I feel my punishment is over and now my friends and family have to suffer.”
Green, 36, was pronounced dead just seven minutes after the lethal dose was administered.
“A lot of what happened was a product of excess drinking and smoking dope. Almost everything he did was in an alcoholic haze,” Bays said. “Ricky was like a human bonsai tree, every time he would try to grow into a person, Bill Green would cut him down.
39 F.3d 582
In the Matter of Ricky Lee GREEN, Petitioner.
No. 94-50667.
United States Court of Appeals,
Fifth Circuit.
Nov. 28, 1994.
Petitions for Writs of Mandamus to the United States District Courts for the Northern and Western Districts of Texas.
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In this capital habeas corpus proceeding brought pursuant to 28 U.S.C. Sec. 2254, the petitioner, Ricky Green, has filed a petition for writ of mandamus that calls upon us to decide which federal district court or courts have jurisdiction. On the basis of a recent decision of this court, we conclude that there is jurisdiction in the Western and Southern Districts of Texas but not in the Northern District of Texas.
I.
In 1989, Green was indicted in Criminal District Court No. 4 of Tarrant County, Texas (a county within the Northern District of Texas), with the capital murder of Steven Fefferman. After jury selection began, the state withdrew its objection to Green's motion for change of venue, which the trial court then granted, and the case was transferred to Travis County, Texas (a county in the Western District of Texas), for trial in the 167th Judicial District Court of that county.
Following a jury trial, Green was found guilty of capital murder in 1990 and was sentenced to death. Venue then was transferred back to the Tarrant County court. The Texas Court of Criminal Appeals affirmed the conviction and sentence. Green v. State, No. 71,170 (Tex.Crim.App. Dec. 9, 1992) (unpublished), cert. denied, --- U.S. ----, 113 S.Ct. 3011, 125 L.Ed.2d 702 (1993). In January 1994, Green applied to the Tarrant County trial court for state habeas relief, which was denied. Ex parte Green, No. 26,331-01 (per curiam) (Tex.Crim.App. Apr. 19, 1994).
On August 16, 1994, the Tarrant County trial court scheduled Green's execution for October 4, 1994. On September 19, Green filed, in the Northern District of Texas, a motion for appointment of counsel and stay of execution.1 On September 21, the federal court appointed an attorney from the Texas Resource Center as Green's counsel but denied, without prejudice, the request for stay. The court directed Green to file a federal habeas petition by September 27 or tell the court, by that date, that he did not intend to file a petition.
On September 27, Green filed a notice of intent not to file a federal habeas petition. He also filed a motion to withdraw his motion for appointment of counsel and stay of execution, asking the court to rescind its orders made pursuant to that pro se filing and to dismiss the habeas proceeding.2 As justification for the motion, Green stated that his attorney had just discovered that the Northern District court was without jurisdiction. The court then ordered briefing on that issue.
On September 30, Green filed a second state habeas petition in the Tarrant County trial court. On October 3, the Court of Criminal Appeals adopted the trial court's recommendation and denied relief on the procedural ground that the court would not consider the petition while Green's case was pending in federal court. Ex parte Green, No. 26,331-02 (Tex.Crim.App. Oct. 3, 1994) (per curiam). On that same date, Green filed a notice of voluntary dismissal of the Northern District habeas proceeding pursuant to FED.R.CIV.P. 41(a)(1).
Also on October 3, at approximately 3:30 p.m., which was about nine hours before his scheduled execution, Green filed a federal habeas petition and motion for stay of execution in the Western District of Texas. The Western District court, on the state's motion, transferred the proceeding to the Northern District at approximately 5:00 p.m. that same day.
The state then announced that it had no objection to a stay of execution. In this court, Green filed a motion for stay of execution and mandamus actions seeking to compel the return of the case to the Western District. We then entered a stay of execution but took no action on the pending mandamus actions.
On October 4, the Northern District court entered an order concluding, on the basis of Dobard v. Johnson, 749 F.2d 1503 (11th Cir.1985), that the Western, Northern, and Southern Districts of Texas have concurrent jurisdiction to entertain a federal habeas petition from Green. Accordingly, the court reasoned, the transfer from the Western District to the Northern District was proper. The court ordered the state to respond to the federal habeas petition.3
II.
Federal habeas corpus jurisdiction is determined by 28 U.S.C. Sec. 2241(d), which reads as follows in regard to a state containing more than one federal judicial district:
[T]he application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.
Although Green is incarcerated in the Southern District of Texas, which indisputably would have jurisdiction under the statute's plain language, the only dispute here is in regard to jurisdiction in the Western and Northern Districts.
The controversy centers on the meaning of the words "the district within which the State court was held which convicted and sentenced " the criminal defendant. (Emphasis added.) Green argues that his case is controlled by this court's recent decision in Gosch v. Collins, 20 F.3d 1170 (per curiam) (table), No. 93-8635 (5th Cir. Apr. 6, 1994). We agree.
In Gosch, the petitioner was indicted in Bexar County (in the Western District of Texas) but was tried, convicted, and sentenced, on a change of venue, in Victoria County (in the Southern District of Texas). As here, the matter was returned to the county of indictment for post-trial proceedings. The petitioner filed his federal habeas petition in the Western District of Texas, whereupon the district court dismissed the petition for lack of subject matter jurisdiction.
On appeal, a panel of this court concluded that there was no jurisdiction in the Western District, because "under 28 U.S.C. Sec. 2241(d) ... jurisdiction for habeas corpus petitions for Petitioner Gosch lies only in the ... Southern District of Texas." This constitutes an interpretation of the words "within which the State court was held which convicted and sentenced him," to the effect that post-trial proceedings, following sentencing, are not to be considered in determining jurisdiction under Sec. 2241(d).
Accordingly, the present facts--and those in Gosch--are easily distinguished from the circumstance in Dobard, the authority principally relied upon by the state. There, as here, indictment was in a county within one federal district, but trial, on a change of venue, was in a county within a different federal district. Following trial, "some of the incidents of sentencing were, in the physical sense, done in one county, some in the other." 749 F.2d at 1505.4
The petitioner filed his federal habeas petition in the district wherein the indictment occurred. That district court transferred the proceeding to the district where the trial was held. On appeal from the transfer order, the Eleventh Circuit, referring to the "peculiar circumstances" of the case, held "that where substantial incidents of conviction and sentence are divided between two federal judicial districts, either district court is the court of conviction and sentence within the meaning of Sec. 2241(d) and has power to entertain the petition on its merits or transfer it." Id.
Obviously, the facts of the instant case are like those in Gosch and dissimilar to those in Dobard. We are bound by Gosch as the precedent of this court. Accordingly, we conclude that jurisdiction lies in the Western District of Texas and not in the Northern District of Texas.
We find it unnecessary, however, to issue a writ of mandamus at this time. The two district courts were dealing with a somewhat novel issue and, in good faith, attempted to comply with the law. We are confident that, in light of this opinion, they now will see to it that this matter is transferred to the Western District of Texas, which in turn will consider Green's habeas petition on the merits.
The petitions for writs of mandamus are DENIED without prejudice.
*****
1
Although the petition indicated that it was filed pro se, a representative of the Texas Resource Center acknowledged, in a subsequent telephone hearing transcribed in the record, that the Resource Center had helped Green prepare and file the federal petition
2
Green's rationale for requesting dismissal of the habeas proceeding, when no explicit request had been made for habeas relief, was that under McFarland v. Scott, --- U.S. ----, ---- - ----, 114 S.Ct. 2568, 2572-73, 129 L.Ed.2d 666 (1994), the filing of the motion for appointment of counsel constituted the initiation of a federal habeas proceeding
3
Green moved in this court for a stay of the Northern District proceedings pending our ruling on the mandamus petitions. We denied the motion on the ground that it had not been presented, in the first instance, to the district court. Green then moved for a stay in the Northern District. After that court denied the motion, Green once again requested that we grant a stay. We have now done so, and the Northern District proceedings are in abeyance pending our consideration of the jurisdictional issue presented in the mandamus petitions
4
The complicated course of proceedings between the two counties was as follows:
The murder ... occurred in Sumter County.... Dobard was indicted in ... Sumter County, and numerous pretrial motions were filed and heard in that court. [The trial court] transferred the trial ... to Marengo County.... Various pretrial motions were heard in Sumter County, but ... after the transfer ... all orders were entered by the Circuit Court of Marengo County. ... [T]he sentencing hearing ... was heard in Sumter County and petitioner was there orally sentenced.... The judge signed the sentencing order while in Marengo [County]. Dobard's motion for a new trial was received by the circuit clerk in Sumter [County] and then sent on to be filed in Marengo [County]. The hearing on the new trial motion was conducted in Sumter [County].
749 F.2d at 1505.
116 F.3d 1115
Ricky Lee Green, Petitioner-appellant,
v.
Gary L. Johnson, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-appellee
United States Court of Appeals, Fifth Circuit.
June 27, 1997
Appeal from the United States District Court for the Western District of Texas.
Before SMITH, DeMOSS and PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ricky Green appeals the denial of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 (West Supp.1997). Concluding that Green has failed to make a substantial showing of the denial of a federal right, we deny him a certificate of probable cause ("CPC") and vacate the stay of execution.
I.
In April 1986, Green was charged with the capital murder of Steven Fefferman. Following his arrest, Green provided the police with a statement concerning his relationship with Fefferman. According to Green, he had met Fefferman on the eve of the murder at Casino Beach, an area known to be frequented by homosexuals.
After a sexual encounter with Fefferman, Green dropped off his car at his own home and proceeded to Fefferman's home, where the two drank some beer and again engaged in sexual activity. After Green convinced Fefferman to allow him to tie Fefferman to the bed, Green stabbed Fefferman several times. Before leaving Fefferman's house, Green sexually mutilated Fefferman, ransacked the bedroom in search of money, and left in Fefferman's car.
II.
Following a jury trial,1 Green was convicted of capital murder and sentenced to death in September 1990. During the sentencing phase, the court admitted evidence of three other murders to which Green had confessed, which murders also involved beatings and mutilation of genitalia similar to those surrounding the Fefferman murder, and also Green's stalking a seventeen-year-old girl and assaulting two teenage boys.
Green was represented during pre-trial by court-appointed counsel Jeff Kearney and Suzie Johnson. Following a change of venue, Kearney withdrew and was replaced by David Bays. A third attorney, Kenneth Houp, also was appointed to assist in the pre-trial proceedings, although his role ended with the completion of jury selection. Green was represented throughout the trial by Bays and Johnson, on direct appeal by Johnson and Danny Burns, and on his first state habeas application by Robert Ford.
Green's conviction and sentence were affirmed on direct appeal. See Green v. State, No. 71,170 (Tex.Crim.App. Dec. 9, 1992) (en banc) (unpublished). The Court of Criminal Appeals later denied Green's application for habeas relief. See Ex parte Green, No. 26,331-01 (Tex.Crim.App. Apr. 19, 1994) (en banc) (per curiam).
In September 1994, Green filed, in the United States District Court for the Northern District of Texas, a pro se motion for appointment of counsel to file a federal habeas petition pursuant to 28 U.S.C. § 2254 and for a stay of execution. After the court granted Green permission to proceed in forma pauperis and appointed counsel, Green filed a motion to withdraw his pro se pleading on the ground that jurisdiction lay properly in the Western District of Texas.
Also in September 1994, Green filed a second state habeas petition in the Tarrant County trial court, which petition was also denied by the Court of Criminal Appeals. See Ex parte Green, No. 26,331-02 (Tex.Crim.App. Oct. 3, 1994) (en banc) (per curiam). Concurrently with that denial, Green filed a notice of voluntary dismissal of the Northern District habeas proceeding pursuant to FED. R. CIV. P. 41(a)(1), and filed a new petition in the Western District.
The Western District petition was transferred to the Northern District, the situs of the indictment, which transfer the Northern District concluded was proper under Dobard v. Johnson, 749 F.2d 1503 (11th Cir.1985). On appeal we reversed, concluding that, pursuant to Gosch v. Collins, 20 F.3d 1170 (5th Cir.) (per curiam), jurisdiction lay in the Western District. See In re Green, 39 F.3d 582 (5th Cir.1994).
In the Western District, Green asserted thirteen grounds for habeas relief, each of which had been exhausted in state court either on direct appeal or through the state post-conviction process. In July 1996, the district court reviewed de novo and adopted the findings of the magistrate judge to grant the state's summary judgment motion and to deny Green's habeas petition. Green filed his application for a CPC in August 1996. The district court, construing the CPC application as an application for a certificate of appealability ("COA"), denied the application in September 1996.
III.
A.
As a threshold matter, we must determine whether the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), governs the instant appeal. Although we have held previously that the standards of review set forth in the AEDPA apply to all habeas petitions that were pending on April 24, 1996, the date on which the President signed the bill into law, see Drinkard v. Johnson, 97 F.3d 751, 764-66 (5th Cir.1996), we now must conclude otherwise in light of Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
Among other things, the AEDPA amends § 2244 and §§ 2253-2255 of chapter 153 of title 28 of the United States Code, the provisions that govern all habeas proceedings in federal courts. See 110 Stat. 1217-21. The AEDPA also creates, for habeas proceedings against a state in capital cases, a new chapter 154 with special rules favorable to the state, but applicable only if the state opts in by agreeing to provide for the appointment of post-conviction counsel in state habeas proceedings. See 110 Stat. 1221-26.
Whereas the amendments to chapter 153 do not contain an effective date, the AEDPA provides expressly that the new chapter 154 "shall apply to [state capital] cases pending on or after the date of enactment of this Act." 110 Stat. 1226. In Lindh, the Court construes "this provision of § 107(c) ... as indicating implicitly that the amendments to chapter 153 were assumed and meant to apply to the general run of habeas cases only when those cases had been filed after the date of the Act." --- U.S. at ----, 117 S.Ct. at 2063.
As we have already noted, amended § 2254(d) (in chapter 153 but applicable to chapter 154 cases) governs standards affecting entitlement to relief. If, then, Congress was reasonably concerned to ensure that chapter 154 be applied to pending cases, it should have been just as concerned about chapter 153, unless it had the different intent that the latter chapter not be applied to the general run of pending cases.
Nothing, indeed, but a different intent explains the different treatment.
Id., --- U.S. at ----, 117 S.Ct. at 2064.
As we have stated, chapter 154 is apposite to capital cases only where states have elected to opt in and have qualified to participate by meeting the requirements of § 107. Because the State of Texas has not yet qualified for the expedited procedures governing habeas petitions in capital cases, see Carter v. Johnson, 110 F.3d 1098, 1104 (5th Cir.1997), chapter 154 does not apply to the instant case.2 Thus, in light of Lindh 's explication that "the negative implication of § 107(c) is that the new provisions of chapter 153 generally apply only to cases filed after the act," --- U.S. at ----, 117 S.Ct. at 2068, and given that Green filed the instant petition before the April 24, 1996, effective date of the AEDPA, we apply pre-AEDPA habeas law to his claims.
B.
Before the advent of the AEDPA, a petitioner could not appeal a district court's ruling on a habeas petition that concerned detention arising from state court proceedings unless a district or circuit judge issued a CPC. 28 U.S.C. § 2253; see also Baldree v. Johnson, 99 F.3d 659, 660 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1489, 137 L.Ed.2d 699 (1997). To obtain a CPC, the petitioner must 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) (internal quotes and citation omitted). Such a showing requires a demonstration "that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further." Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4.
Section 102 of the AEDPA amended 28 U.S.C. § 2253 to require that a petitioner obtain a COA. See 28 U.S.C. § 2253(c)(1). A COA may be issued only where the applicant has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Notwithstanding the slightly different wording between the pre-AEDPA and the amended § 2253, we have noted previously that the AEDPA was intended to codify the Barefoot standard and thus that the standard governing the issuance of a COA requires the same showing as that for obtaining a CPC. See Drinkard, 97 F.3d at 756. Nonetheless, because Green's habeas petition was filed with the district court before April 24, 1996, Lindh compels that we review his petition for a CPC under the pre-AEDPA jurisprudence.
Under the pre-AEDPA standards, state court findings are entitled to a presumption of correctness unless, among other things, the petitioner demonstrates that the state courts failed to resolve the claims on the merits. See Livingston v. Johnson, 107 F.3d 297, 302 (5th Cir.1997). Because Green argues that the state failed so to adjudicate his claims, we must determine initially whether a state court has disposed of Green's claims on the merits.3
Green argues that the state habeas courts' "perfunctory disposition" is not a resolution on the merits because, he alleges, the petitions were denied without an evidentiary hearing4 "and without reference to any factual or legal issue presented." According to Green, the resolution-on-the-merits prerequisite is a proxy for the quality of the legal process of resolving a dispute; the court's treatment of the petitions must evince a "careful consideration of the constitutional claims" and a thorough and meaningful substantive evaluation of the claims.
We disagree both with Green's proffered construction of the merits inquiry and with his contention that the state courts did not adjudicate his habeas claims on the merits. "Resolution on the merits" is a term of art in the habeas context that refers not to the quality of a court's review of claims, but rather to the court's disposition of the case--whether substantive or procedural. See Preston v. Maggio, 705 F.2d 113, 116 (5th Cir.1983). We must inquire, on a case-by-case basis, whether a resolution was on the merits, considering the following factors: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state courts' opinions suggest reliance upon procedural grounds rather than a determination of the merits. See id.
A careful review of the state courts' opinions denying Green habeas relief reveals that his claims were in fact disposed of on the merits. In denying Green's first state habeas petition, the Court of Criminal Appeals acknowledged that he presented "fourteen (14) allegations in which he challenges the validity of his conviction or sentence. The trial court recommended the relief sought be denied. This Court has reviewed the record. We agree with the trial court's recommendations and accordingly deny habeas relief."
The trial court memorandum to which the Court of Criminal Appeals refers indicates that the trial court considered Green's allegations, the state's reply, the case record, and the evidence presented by both parties before determining that habeas relief be denied. Neither the trial court's nor the Court of Criminal Appeals's order makes mention of procedural grounds for denying relief, nor has Green brought any to our attention.
With respect to Green's second habeas petition, the trial court memorandum, again to which the Court of Criminal Appeals refers in denying relief, not only indicates that "[Green's] assertions in his application for writ of habeas corpus are without merit," but specifically excludes any reliance upon procedural grounds for denying relief. The trial court concluded expressly (1) "that it is not barred from ruling upon the merits of [Green's] claim by the pendency of [his] motion to dismiss in Federal District Court" and (2) that "[Green] is not procedurally barred from seeking relief on the merits of his claim." The Court of Criminal Appeals, after reviewing the record on its own, referenced the trial court's memorandum and "agree[d] with the trial court's recommendation and, accordingly, denie[d] all requested habeas corpus relief."
We are confident, therefore, that Green's habeas claims were resolved on the merits, as opposed to having been disposed of on non-merits-based, procedural grounds; the presumption of correctness therefore applies. See Livingston, 107 F.3d at 302-03.
IV.
A.
Green alleges that his counsel's performance at both the trial and sentencing phases was ineffective because, after having conscripted an expert (Dr. Richard Rappaport) and considered carefully his conclusions, they decided not to put on an insanity defense. Green argues that his counsel's reasons for not presenting the defense are unclear from the record; that the internal conflict within the defense team precludes a finding that the rejection of Rappaport's defense was trial strategy; and that counsel's decision was based in part upon an erroneous interpretation of the law concerning whether presentation of the defense would have opened the door to the cross-examination of Rappaport about additional incriminating information--namely, fifteen other murders to which Green confessed to Rappaport.
To establish ineffective assistance of counsel, Green must demonstrate both deficient performance and prejudice resulting from that deficiency. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). We compare counsel's performance to an objective standard of reasonableness, mindful of the strong presumption of adequacy. We will not find inadequate representation merely because, with the benefit of hindsight, we disagree with counsel's strategic choices. See id. at 689-90, 104 S.Ct. at 2065-66. "A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983) (on rehearing). Because an ineffective assistance claim is a mixed question of law and fact, we review the district court's decision de novo. See Salazar v. Johnson, 96 F.3d 789, 791 (5th Cir.1996). As we noted above, findings of fact are entitled to a presumption of correctness. See Washington, 466 U.S. at 698, 104 S.Ct. at 2070.
Applying the prejudice prong in the context of counsel's performance at sentencing, we ask whether the petitioner has demonstrated "a 'reasonable probability' that the jury would not have imposed the death sentence in the absence of errors by counsel." Carter, 110 F.3d at 1110. Failure to establish either prong defeats the claim. See Lincecum v. Collins, 958 F.2d 1271, 1278 (5th Cir.1992).
Kearney averred that he hired Rappaport to examine Green and that, based upon Rappaport's conclusions that Green was in fact legally insane at the time of the Fefferman murder, he intended to make full use of Rappaport's findings during the trial and sentencing phases. After the change of venue, Kearney left the defense team and was replaced by Bays, at which time conflicts began to arise between Johnson and Bays. According to Johnson, Bays wished to use Rappaport's testimony to establish that Green's insanity turned him into a "serial killer." Believing that such a tactic would add to the state's showing of "future dangerousness" during the punishment phase of the trial, Johnson disagreed with the decision to place Rappaport on the stand, and Johnson and Bays ultimately agreed to abandon the insanity defense.5
Green contends that the internal wrangling between Johnson and Bays renders suspect their decision not to present an insanity defense. Although the record does demonstrate that conflict existed, Green has proffered no evidence tending to prove that the decision not to place Rappaport on the stand was infected impermissibly with whatever personal disagreements there were. To the contrary, Johnson and Bays proffered the other valid tactical reasons we have mentioned.6
Even assuming arguendo that Johnson and Bays erred in concluding that Rappaport's testimony would have opened the door to additional incriminating evidence, this error alone does not give rise to a constitutional ineffectiveness claim. See Moreno v. Estelle, 717 F.2d 171, 176 (5th Cir.1983) (noting that the Sixth Amendment does not guarantee an accused "errorless representation"). There is sufficient evidence demonstrating that the decision not to proffer an insanity defense was a "conscious and informed" tactical one. See Garland, 717 F.2d at 206.7 No reasonable jurist would disagree, and Green has not made a substantial showing of the denial of a constitutional right.
Green's reliance on Bouchillon v. Collins, 907 F.2d 589 (5th Cir.1990), and Profitt v. Waldron, 831 F.2d 1245 (5th Cir.1987), is misplaced. In Bouchillon, we concluded that counsel was ineffective in failing to offer an insanity defense because (1) it was the only defense available to the defendant; and (2) although counsel was aware that the defendant had been committed previously to mental institutions, he did not ask for a psychiatric evaluation or conduct any other investigation. 907 F.2d at 597. We concluded the same in Profitt after also noting both that the defendant had only the insanity defense available to him and that, although counsel was aware that the defendant had escaped previously from a mental institution, counsel failed to investigate his client's sanity, which investigation would have revealed that the defendant had been adjudicated insane by an Idaho court only months before the instant trial. See Profitt, 831 F.2d at 1249. Furthermore, we gave minimal deference to the Profitt counsel's tactical decision not to employ the insanity defense, as we could ascertain no advantage attendant to abandoning the defense. See id.
Not only did Green's counsel investigate fully the possibility of putting on an insanity defense (including conscripting Rappaport to prepare a report based on extensive interviews with Green and reviewing the contents of that report), but they considered various tactical reasons attendant to their decision to present or abandon the defense. Furthermore, the defense was not the only one available to Green; his counsel presented a defense that he lacked the requisite mens rea to commit the underlying felony.
With respect to Green's claim that he was denied effective assistance of counsel at the sentencing phase because his counsel failed to present the Rappaport findings, we similarly find no constitutional error. According to Green, the decision to forego this testimony prevented the jury from receiving an explanation of the nexus between his mitigating evidence of child abuse, severe mental illness, and brain damage and his actions in killing Fefferman. Johnson indicated, however, that she believed that the effects of this evidence on the "future dangerousness" prong of the Texas capital murder jury questions would "100% guarantee[ ]" that Green would receive the death penalty. Furthermore, the defense did present, through Dr. Randall Price, evidence of Green's abusive childhood and mental disorders and their effects upon his ability to conform his behavior to acceptable levels.8 Thus, we agree with the district court that Green has not made a substantial showing of the denial of a federal right with respect to his counsel's decisions not to use Rappaport's testimony.
B.
Green asserts that his counsel were ineffective in failing to cross-examine Robert Ressler effectively during the punishment phase of the trial. Ressler was a state witness who testified that he had been involved in the largest survey of serial murderers ever conducted and that, based upon this experience, he considered Green to be an "organized serial killer."
Although Johnson avers that she had prepared to cross-examine Ressler, Bays decided, on the spur of the moment, to conduct the cross-examination without having done sufficient investigation or preparation. Bays did question Ressler concerning his credentials, his understanding of Texas law, how potential affiliations affected his impartiality, and his understanding of the connection between abused children and serial killers. Green contends that had Ressler been cross-examined properly, he could have (1) challenged Ressler's conclusions that he posed a continuing risk of future danger, (2) demonstrated that his research methods were unreliable and inaccurate, and (3) shown that Ressler's own writings suggest a link between the traumatic childhoods of serial killers and their subsequent murders.
Assuming arguendo that the cross-examination of Ressler was deficient, Green has failed to demonstrate "a 'reasonable probability' that the jury would not have imposed the death sentence in the absence of errors by counsel." Carter, 110 F.3d at 1110. First, Ressler testified during the rebuttal portion of the punishment phase, at which time the jury already had heard in detail about three other similarly-situated murders to which Green had confessed. Thus, to the extent that Ressler testified regarding Green's future dangerousness, Green has failed to disentangle the effects of evidence of the other murders from Ressler's more abstract research-based testimony. That is, even assuming that the proffered cross-examination of Ressler would have destroyed his credibility with the jury, Green has not demonstrated a reasonable probability of prejudice.
Second, not only did Bays's cross-examination of Ressler elicit some support for the defense's primary theory that Green's behavior was a product of his abusive childhood, but Green also had presented Price's testimony to that effect during the punishment phase, as well as other corroborative testimony during the guilt phase. Again, Green has not demonstrated sufficiently that eliciting Ressler's further agreement with the defense theory would have enhanced, with sufficient probability, the jury's acceptance of the defense's underlying theory. Reasonable jurists would not find the issue debatable, and therefore Green has not made a substantial showing of the denial of a federal right.
V.
A.
Green contends that he was denied his constitutional right to be present at all phases of his trial when he was denied access to an ex parte hearing among his counsel and the judge, during which the court entertained Johnson's oral motion to withdraw from representation. Green concedes that his absence from the hearing does not infringe upon his confrontation right but argues that it offends his due process right to a fair trial.
A defendant has a right to be present at a proceeding "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (per curiam) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)). His absence from such a proceeding amounts to a due process violation only "to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Snyder, 291 U.S. at 108, 54 S.Ct. at 333.
The oral motion to withdraw was made and discussed during an ex parte conference in chambers (in the course of jury voir dire) and centered on disagreements between Johnson and Bays. According to Johnson's affidavit, her relationship with Bays had deteriorated to the point that they no longer conferred directly regarding the case, but rather communicated through Houp only. Johnson expressed her frustrations regarding this situation to the court and requested that she be permitted to withdraw from representation. The court denied the motion, and, although stating that it would keep the motion under advisement in the event that the working relationship continued to worsen, the matter was not raised again.
Although Green protests that he was prejudiced by his exclusion from the meeting, we fail to see how his absence thwarted the fairness and just treatment of the issues at the ex parte communication or with respect to his overall representation. Green contends that had he been present, "he could have provided the trial court with important information about the conflict that would have effected [sic] the court's ruling." But, Green does not give us the contents of such information or the effect it would have had on the ruling.
Furthermore, we reject Green's suggestion that his absence from this meeting prevented him from becoming aware of any disputes between his counsel and thus from exercising his right either to take over his own defense or to request new counsel. Not only did Johnson admit in her affidavit that "the animosity between Mr. Bays and me was clear to everyone in the courtroom," thus calling into question Green's protested ignorance, but we also do not believe Green has made a substantial showing that he was denied effective assistance because of his inability personally to request a change of counsel that the court denied upon request from Johnson. See Bass v. Estelle, 696 F.2d 1154, 1158-59 (5th Cir.1983).
B.
Green argues further that the failure of his counsel on direct appeal to raise the issue of his absence from this hearing denied him the effective assistance of counsel on direct appeal. To this end, Green relies upon TEX.CODE CRIM. PROC. ANN. art. 33.03 (Vernon 1986) and Adanandus v. Texas, 866 S.W.2d 210, 216-19 (Tex.Crim.App.1993). Assuming arguendo that Green's absence from the meeting ran afoul of art. 33.03, Adanandus counsels that harmless error analysis applies to the statutory violation. See id. at 219. Adanandus instructs further that the harmless error analysis is informed by the Snyder "reasonably substantial relationship" test. Thus, because we reject Green's Snyder claim with respect to his absence from the hearing, we conclude similarly that any error of his counsel on direct appeal was harmless.
VI.
Green avers that his direct appellate counsel's failure to raise the issue of the exclusion for cause of veniremember Harren deprived him of effective assistance. At trial, Green's attorney objected to the exclusion of Harren, arguing that it is impermissible to grant a challenge for cause where a juror is unable to answer affirmatively the second special issue on the facts of the capital offense alone. The trial court correctly overruled Green's motion, relying upon Marras v. Texas, 741 S.W.2d 395 (Tex.Crim.App.1987) (en banc).
At the time of Green's appeal, Marras was the controlling precedent, and Green's appellate counsel therefore decided not to raise Harren's exclusion for cause on direct appeal. The Court of Criminal Appeals affirmed Green's conviction on December 9, 1992, and his motion for rehearing, filed on December 13, was denied on February 12, 1993. On January 13, 1993, the Court of Criminal Appeals decided Garrett v. Texas, 851 S.W.2d 853 (Tex.Crim.App.1993) (en banc), overruled Marras, and held that a veniremember is not subject to a challenge for cause merely because he indicates that he would require more evidence than the legal minimum in order to answer special issue two affirmatively. 851 S.W.2d at 860-61. Garrett did not become final and binding on lower courts until rehearing was denied on April 21, 1993. See Thorpe v. Texas, 863 S.W.2d 739, 741 n. 5 (Tex.Crim.App.1993) (en banc).
Green does not dispute that Marras governed his appeal but contends that his appellate counsel was deficient for failing to raise the Marras issue both on his original appeal and during the pendency of Green's rehearing petition, but before Garrett became final. With respect to the former claim that Green's counsel should have raised the Marras issue on his original appeal, we have noted previously that there is no general duty on the part of defense counsel to anticipate changes in the law, see Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. Unit A Apr.1981), and that counsel is not ineffective for failing to raise a claim that Texas courts have rejected repeatedly. See Andrews v. Collins, 21 F.3d 612, 623 (5th Cir.1994). Because it is undisputed that Marras was controlling authority at the time of Green's original appeal, Green has not made a substantial showing that his appellate counsel's failure to raise the Marras issue in the original appeal denied him effective assistance.
We also reject Green's ineffectiveness claim stemming from counsel's failure to assert Garrett during the pendency of his rehearing petition, but two months before Garrett became final. Counsel is not deficient for failing to raise every meritorious claim that may be pressed on appeal. See Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.1989).
The only record evidence submitted by Green on this issue is an affidavit by Burns, one of Green's direct appellate counsel, stating, "I reviewed the record and identified what is now known as Garrett error. I also noted that the error was properly preserved. Neither my co-counsel, Suzie Johnson, nor I raised the issue on appeal." Given that Garrett was not yet final and that Burns and Johnson had identified the issue as one they did not wish to press on appeal, their performance was not constitutionally deficient. See Washington, 466 U.S. at 688-94, 104 S.Ct. at 2064-68.
VII.
Green contends that the trial court erred in failing to admit the testimony of Dr. John Marquart during the punishment phase. Marquart testified on voir dire that he had conducted a study of capital prisoners whose sentences had been commuted, in which he compared those prisoners to murderers who had received life imprisonment. His comparisons revealed that many of the prisoners whom juries had found to pose a threat of future dangerousness (special issue two) in fact posed no such threat. As a result, Marquart concluded that it is difficult, if not impossible, to determine whether a particular defendant poses a direct threat of future danger. Marquart opined further that he did not believe that the death penalty deterred crime; that studies indicated that a short-term increase in crime accompanies an execution; and that there is little correlation between the operation of the death penalty and the number of homicides in Texas.
The sentencer in a capital case must be permitted to consider any constitutionally relevant mitigating evidence, see Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982), which is evidence "directly related to the personal culpability of the criminal defendant," Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989). "Only then can we be sure that the sentencer has treated the defendant as a 'uniquely individual human bein[g]' and has made a reliable determination that death is the appropriate sentence." Id. (quoting Woodson v. North Carolina, 428 U.S. 280, 304-05, 96 S.Ct. 2978, 2991-92, 49 L.Ed.2d 944 (1976)). It is error to exclude evidence opining that the defendant would not commit acts of violence in the future. See Robinson v. Texas, 548 S.W.2d 63, 66 (Tex.Crim.App.1977) (en banc).
The state court determined on direct appeal that, because Marquart's proffered testimony related only to a generalized critique of the accuracy of the future dangerousness prediction, and not to Green's own future dangerousness or to Green's individualized assessment of punishment, it was properly excluded. We do not believe that the state court's factual findings were clearly erroneous, nor do we find any legal error.
VIII.
Green has failed to make a substantial showing of the denial of a federal right. Accordingly, we DENY a CPC and VACATE the stay of execution.
*****
1
Although Green was indicted originally in Tarrant County, Texas, in the Northern District of Texas, the case was transferred, at Green's request, to Travis County, Texas, in the Western District of Texas. Following the trial, venue was transferred back to Tarrant County
2
Carter, Drinkard, and the rest of the post-Drinkard AEDPA progeny presumably remain precedent in this circuit post-Lindh to the extent that they interpret the provisions of the AEDPA and do not conflict with Lindh 's conclusion that the chapter 153 amendments do not apply retroactively
3
Green argued originally that, under the AEDPA jurisprudence, his claim has not been "adjudicated on the merits" and thus was not amenable to state court deference. Because Lindh requires that we construe his habeas petition under pre-AEDPA law, we treat his "adjudication on the merits" argument as one challenging the sufficiency of the merits resolution of his petitions in state court, pursuant to the former 28 U.S.C. § 2254(d)(1) & (2)
4
We consistently have upheld the validity of paper hearings in state habeas proceedings. See Livingston, 107 F.3d at 303
5
The following exchange of notes between Johnson and Green during jury selection illustrates Johnson's tactics:
Green: "[T]ell me something Ms. Johnson, did you drop the insanity plea just to save the state money or did ya'll have something against Mr. Rappaport or is there something else"?
Johnson: "We dropped it because Rappaport's testimony would let the jury know you said you killed Wendy Robinson, some woman in Florida, and 15 other people. That proves the 'future dangerousness' question # 2. I will not prove my client's future dangerousness. I will not prove up a murder (Wendy) where my client is a suspect. # 2 Rappaport's conclusion that you were insane is too shallow. # 3 if Rappaport testified you are 100% guaranteed D.P."
6
In a draft report concerning his interviews with Green, Rappaport describes three other murders to which Green confessed, each involving similar stabbing and mutilation as accompanied the Fefferman murder. Green also told Rappaport that he had killed 15 other people and that he believed that he was doing the country a favor by killing "whores" and homosexuals
7
Green's contention that Martinez-Macias v. Collins, 810 F.Supp. 782 (W.D.Tex.1991), aff'd, 979 F.2d 1067 (5th Cir.1992), compels otherwise is incorrect. The deficiency in Martinez-Macias was counsel's complete failure to investigate the legal basis for a decision not to introduce certain evidence. Id. at 798 n. 23. Green does not allege that his counsel failed to investigate Texas law on the admissibility of the other 15 murders but rather that, after researching the law, his counsel misunderstood the application of the law to the instant facts. Absent more, these allegations do not rise to the level of constitutional ineffectiveness
8
Green also presented, during the trial phase, substantial mitigating evidence that described a litany of abusive actions he suffered at the hands of his father while growing up
