Massey v. Johnson ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10326
JASON ERIC MASSEY
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
(3:97-CV-2572)
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September 13, 2000
Before HIGGINBOTHAM, WIENER, and PARKER, Circuit Judges.
WIENER, Circuit Judge:*
In this habeas corpus action, Petitioner-Appellant Jason Eric
Massey appeals the district court’s denial of his application for
a Certificate of Appealability on a writ of habeas corpus, pursuant
to 28 U.S.C. § 2254. Massey contends that his constitutional
rights were violated in two ways. First, he claims that the trial
court violated his Fourteenth Amendment rights by denying
sufficient funds to pay for both DNA testing and the particular DNA
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
expert whom Massey wanted to testify at the sentencing phase of the
trial to refute the DNA evidence presented by the prosecution. His
second claim is that his Sixth Amendment rights were violated by
the ineffective assistance of his counsel in failing to put on
psychological testimony that Massey would not be a continuing
threat of violence in prison (conceding that he would be a threat
were he released from prison).
I.
FACTS AND PROCEEDINGS
Massey was charged in state court with the murders of two
teenagers. He was convicted of two counts of capital murder and
was sentenced to death. The Texas Court of Criminal Appeals
affirmed.1 After exhausting his direct appeals, Massey filed for
habeas relief in state court and exhausted his claims there, to no
avail. Massey then applied for a writ of habeas corpus in federal
district court, which the court denied at the recommendation of the
magistrate judge. He appealed that decision to us, seeking a COA.
For the reasons that follow, we deny that application.
II.
ANALYSIS
A. Standard of Review
We review an application for a COA under the standard set
forth by the Supreme Court in Barefoot v. Estelle, which requires
1
See Massey v. State, 933 S.W.2d 141 (Tex. Crim. App.
1996).
2
“the habeas petitioner to make a substantial showing of the denial
of a federal constitutional right.”2 Applications for a writ of
habeas corpus from a state court are reviewed under the standard
set forth in the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2254. Under that standard, we may not issue
a writ of habeas corpus with respect to “any claim that was
adjudicated on the merits in State court proceedings” unless the
state court’s adjudication of that claim resulted in “a decision
that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States . . . ; or resulted in a decision that was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”3 A decision is
contrary to clearly established federal law “if the state court
arrives at a conclusion opposite to that reached [by the Supreme
Court] on a question of law or if the state court decides a case
differently than [the] Court has on a set of materially
indistinguishable facts.”4 A decision is an unreasonable
application of federal law “if the state court identifies the
correct governing legal principle . . . but unreasonably applies
2
Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996); see
Barefoot v. Estelle, 463 U.S. 880, 893, 103 S. Ct. 3383, 3394
(1983).
3
28 U.S.C. § 2254(d).
4
Will. v. Taylor, ___ U.S. ___, 120 S. Ct. 1495, 1523
(2000).
3
that principle to the facts of the prisoner’s case.”5 Factual
findings of the state court are presumed to be correct and we defer
to these findings “unless they were ‘based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding.’”6
B. The Fourteenth Amendment Claim
Massey first claims that the state trial court violated his
Fourteenth Amendment rights by denying him sufficient funds with
which to mount his defense. As the State was relying heavily on
DNA evidence in its case against him, Massey requested funds from
the trial court with which to obtain private DNA testing from a
Seattle-based laboratory. After the court provided the necessary
funds for that testing, Massey sought additional funds from the
court to pay for the services of the DNA expert of his choice, Dr.
John C. Gerded, to testify at the punishment phase of his trial.
The trial court refused to grant additional funds to pay for this
expert although it did offer to subpoena any one of a number of
other qualified experts. Then, on Massey’s subsequent request, the
trial court authorized expenditure of the funds initially granted
to pay for the Seattle DNA testing for use in securing Dr. Gerded’s
testimony. Presumably because he had requested such re-allocation,
5
Id.
6
Chambers v. Johnson, 2000 WL 701934, *2 (5th Cir. 2000)
(quoting 28 U.S.C. § 2254(d)(2)).
4
Massey did not object to this ruling at the time. He did, however,
proceed to use the funds in question in mounting his defense.
As Massey did not timely object to the trial court’s refusal
to allocate the full amount of funding requested, his claim is
procedurally barred by the Texas contemporary objection rule. The
“Texas contemporary objection rule is strictly or regularly applied
evenhandedly to the vast majority of similar claims, and is
therefore an adequate procedural bar.”7
We note in passing that even if Massey’s Fourteenth Amendment
claim were not procedurally barred, it would still fail on the
merits. The State must provide indigent defendants with the
assistance of non-psychiatric experts when the evidence to which
their testimony would be relevant is both critical to the
conviction and subject to varying expert opinions.8 This
entitlement does not mean, however, that the defendant must be
provided with the particular expert of his choice; so long as the
court is willing to make neutral experts available, the
constitutional requirements of the Fourteenth Amendment are met.9
In the instant case, the trial court provided funds to Massey
sufficient to obtain DNA testing and even agreed to pay for
7
Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir. 1998).
8
See Yohey v. Collins, 985 F.2d 222, 227 (5th Cir. 1993);
Scott v. Louisiana, 934 F.2d 631, 633 (5th Cir. 1991).
9
See Akes v. Oklahoma, 470 U.S. 68, 84, 105 S. Ct. 1087,
1097 (1985).
5
additional testing. It then offered to subpoena a neutral DNA
expert to testify on Massey’s behalf; however, Massey insisted on
hiring Dr. Gerded as he was the only expert who agreed with the
interpretation of the DNA evidence that Massey wished to advance.
At Massey’s request, the trial court agreed to allow Massey to
spend funds initially granted to pay for the additional DNA testing
to obtain the testimony of Dr. Gerded. As Massey was not
constitutionally entitled to the expert of his choosing and the
funding for the additional testing was re-allocated in accordance
with Massey’s request, the trial court did not violate Massey’s
Fourteenth Amendment rights.
C. Ineffective Assistance of Counsel
Massey’s second contention is that he was denied the effective
assistance of counsel by the failure of his trial counsel to put on
evidence at the sentencing phase to demonstrate that Massey would
not pose a future danger if incarcerated in prison for life. To
succeed on a claim of ineffective assistance of counsel, the
defendant must show that: (1) his “counsel’s representation fell
below an objective standard of reasonableness”; and (2) “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”10
This test is disjunctive, so failure to succeed on either prong is
fatal to a petitioner’s claim.
10
Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.
Ct. 2052, 2064, 2068 (1984).
6
A trial counsel’s “strategic choices made after thorough
investigation of the law and facts relevant to plausible options”
are to be reviewed with great deference and, in fact, are
“virtually unchallengeable.”11 The decision not to put on the kind
of evidence advocated by Massey in an effort to show that he would
not have been a danger if he were sentenced to life in prison was
a valid tactical decision made by Massey’s counsel. Massey faults
his trial counsel for not trying to prove that Massey would not be
dangerous while in prison because his compulsion to kill and
mutilate extends only to women and manifests itself only when he
experiences uncontrollable urges toward members of that sex. Thus,
he advances, he would not become violent in a strictly controlled
environment populated solely by males, such as prison.12 If counsel
had made this argument, however, it would have led inevitably to
the revelation of the grisly facts of Massey’s crime, as well as
all the lurid details of Massey’s violent and lustful desires. We
cannot fault an attorney who avoids the risk of reintroduction of
such evidence at the sentencing phase, especially in light of the
minimal likelihood of this argument’s success.
Instead, Massey’s trial counsel introduced other mitigating
evidence, attempting to highlight the fact that Massey had been
11
Id. at 690-91, 2066.
12
This argument ignores the commonly known fact that
prisons regularly employ many female employees, both as guards
and in other capacities. See Mata v. Johnson, 210 F.3d 324, 326
(2000).
7
mistreated as a child. Such tactics evidence a reasonable choice
of counsel.
Moreover, Massey fails to show that he was prejudiced by the
failure to put on the evidence he advocated regarding future
dangerousness. Given the overwhelming evidence against Massey, the
extreme nature of the crimes he committed, and the unpersuasiveness
of the flawed argument he wished to present, it cannot be said
seriously that “but for counsel’s [failure to put on evidence of
lack of future dangerousness in prison] the result of the
proceeding would have been different.”13
III.
CONCLUSION
For the foregoing reasons we agree with the district court’s
denial of Massey’s application for a COA: He has failed to make a
substantial showing of the denial of his constitutional rights.
Therefore we affirm the decision of the district court and deny
Massey a COA.
AFFIRMED; COA DENIED.
13
Strickland, 466 U.S. at 494.
8