UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________
No. 00-41121 ____________________
MONTY ALLEN DELK,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee. ____________________________________________________________
Appeal from the United States District Court for the Eastern District of Texas (1:98-CV-1583) ____________________________________________________________ August 13, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Monty Allen Delk, convicted for capital murder and sentenced
to death, seeks a certificate of appealability to appeal the denial
of federal habeas relief. DENIED.
I.
In 1988, a Texas jury convicted Delk for capital murder. The
evidence at trial was: in November 1986, Delk contacted the victim
in Texas about purchasing an automobile advertised for sale in a
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. newspaper; after the victim met Delk with the vehicle on 29
November, the victim’s wife saw the victim and Delk in the vehicle,
with Delk driving it; a few hours later, the victim was discovered,
with a fatal shotgun wound; Delk was arrested on 2 December, after
a police officer observed the victim’s vehicle at a house in
Louisiana where Delk was located; included among the items in
Delk’s possession were a copy of the newspaper advertisement, a
sawed-off shotgun, the victim’s car keys, and a photograph of the
victim’s wife, which the victim had carried in his wallet. Delk v.
State, 855 S.W.2d 700, 702-03 (Tex. Crim. App. 1993).
At the penalty phase, the State’s evidence included Delk’s
estranged wife, Tina Delk, and her brother, Richard Frye,
testifying Delk had previously contemplated committing similar
crimes, and had told them he had killed a man in Florida; and
Delk’s mother-in-law, his wife’s former employer, and two of his
former co-workers testifying Delk had threatened them. Id. at 708.
Based on the jury’s affirmative answers to the special issues
regarding deliberateness and future dangerousness, Delk was
sentenced to death. Id. at 702. On direct appeal, the Texas Court
of Criminal Appeals affirmed the conviction and sentence. Id. at
712. The Supreme Court denied certiorari. Delk v. Texas, 510 U.S.
982 (1993).
Delk sought state habeas relief in 1997. After conducting
hearings that September and November, the trial court, in February
2 1998, recommended denial of relief. Ex parte Delk, No. 19277-A (3d
Jud. Dist. Ct., Anderson County, Tex. 3 Feb. 1998) (unpublished).
That April, the Court of Criminal Appeals denied relief without a
written order. Ex parte Delk, No. 36,617-01 (Tex. Crim. App. 15
Apr. 1998).
That August, Delk sought federal habeas relief, raising 21
issues. Relief was denied in March 2000.
Delk sought a certificate of appealability (COA) from the
district court as to eight issues: (1) “Whether [he] is presently
competent to proceed at federal habeas”; (2) “Whether [he] was
competent to proceed at state habeas”; (3) “Whether the results of
the state and federal habeas proceedings initiated by [appointed
habeas counsel] are binding upon him by reason of assent or
acquiescence”; (4) “Whether flaws in the fact finding process used
by the Texas court regarding [his] competence preclude [a federal
court] from according deference to the state court findings”; (5)
“Whether an evidentiary hearing regarding [his] competence, with
the attendant funding for experts and discovery, is required to be
conducted in [district] court”; (6) “Whether a remand to this
[(district?)] court for an evidentiary hearing regarding [his
claims under Brady v. Maryland, 373 U.S. 83 (1963), and Strickland
v. Washington, 466 U.S. 668 (1984)], with the attendant funding for
experts, discovery, and compulsory process, is required”; (7)
“Whether the summary excusal of the nine [venire members] with
3 doubts about the death penalty requires a new trial”; and (8)
“Whether [his] juror claims are procedurally barred....” The
district court denied a COA for each issue.
Delk seeks a COA from our court on ten issues. But, only four
of those ten were included in his COA requests to the district
court. The ten issues, in the order presented here, are: (1)
“Whether the Texas Court of Criminal Appeals’ post-conviction
refusal to fund a thorough mental health examination denied [him]
full and fair consideration of his claim of incompetence to proceed
at state habeas, which rendered the state evidentiary record
incomplete and unreliable, and its competence finding unworthy of
deference ...” (in district court COA request); (2) “Whether the
District Court erred in refusing to fund and conduct its own mental
health examination and evidentiary hearing [on his] claim of [his]
incompetence to proceed at federal habeas” (in district court COA
request); (3) “Whether the District Court erred in finding [him]
competent to be executed ...” (not in district court COA request);
(4) “Whether [trial counsel rendered ineffective assistance by]
fail[ing] to investigate [his] medical and mental health background
...” (not in district court COA request); (5) “Whether the trial
court [erred by] excusing for ‘cause’ ... nine [venire members
based on their views regarding the death penalty] ...” (in district
court COA request); (6) “Whether [trial counsel rendered
ineffective assistance by] fail[ing] to attempt to rehabilitate the
nine excused [venire members] ...” (not in district court COA
4 request); (7) “Whether the Texas Court of Criminal Appeals’
refusal, at state habeas, to fund needed discovery, and compel the
attendance of ... witnesses ... [at the state evidentiary hearing]
denied [him] full and fair consideration of his Brady and
Strickland claims, which rendered their denial unworthy of
deference by the ... District Court” (in district court COA
request); (8) “Whether the prosecutors violated the Due Process
Clause by withholding from the defense impeaching information
bearing on the reliability of the ‘future dangerousness’ testimony
of Tina Delk” (not in district court COA request); (9) “Whether
[trial counsel rendered ineffective assistance] by failing to
investigate the background of ... Richard Frye and Tina Delk” (not
in district court COA request); and (10) “Whether the trial judge
violated the Due Process Clause and the Eighth Amendment by 1)
failing to inform the sentencing jury that Mr. Delk would serve a
minimum of 20 years before parole eligibility, and 2) falsely
informing a prison community jury that Mr. Delk would actually be
imprisoned for life if [he did not receive the death penalty]” (not
in district court COA request).
Because Delk did not seek a COA from the district court for
issues 3, 4, 6, and 8-10, we do not have jurisdiction to consider
those COA requests.2 See Goodwin v. Johnson, 224 F.3d 450, 459 n.6
2 Although the State does not assert a jurisdictional bar to consideration of any of the issues for which Delk seeks a COA, we, of course, have a duty to consider our jurisdiction sua sponte.
5 (5th Cir. 2000) (“before we may consider a petitioner’s application
for a COA on a particular issue, that petitioner must first submit
his request to the district court and have that request denied”),
cert. denied, 121 S. Ct. 874 (2001); Sonnier v. Johnson, 161 F.3d
941, 946 (5th Cir. 1998) (“Compliance with the COA requirement of
28 U.S.C. § 2253(c) is jurisdictional, and the lack of a ruling on
a COA in the district court causes this court to be without
jurisdiction to consider the appeal.”); Whitehead v. Johnson, 157
F.3d 384, 387-88 (5th Cir. 1998) (consideration of merits of issue
not addressed in district court’s COA determination “would run
afoul of the requirement that initially the district court deny a
COA as to each issue presented by the applicant”); Muniz v.
Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (“district court must deny
the COA before a petitioner can request one from this court”; COA
which does not specify issues warranting appellate review “is
insufficient to vest jurisdiction in this court”). Moreover, in
addition to not seeking a COA in district court on the Brady claim
that is the subject of issue 8 in Delk’s COA application here, the
Brady claim was not raised in district court as a ground for habeas
relief. See Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir.)
(habeas claim not raised in district court cannot be considered
when raised for first time on appeal), petition for cert. filed, __
E.g., Burt v. Ware, 14 F.3d 256, 257 (5th Cir. 1994).
6 U.S.L.W. __ (U.S. 13 June 2001) (No. 00-10618). Accordingly, we
consider Delk’s COA requests only for issues 1, 2, 5, and 7.3
II.
Because Delk sought appellate review of the denial of habeas
relief after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), “the right to appeal is governed
by the certificate of appealability (COA) requirements now found at
28 U.S.C. § 2253(c)”. Slack v. McDaniel, 529 U.S. 473, 478 (2000).
To obtain a COA, Delk must make “a substantial showing of the
denial of a constitutional right”. 28 U.S.C. § 2253(c)(2). For
that showing, Delk must demonstrate “reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further”. Slack, 529 U.S. at 484 (internal quotation marks
omitted). For claims as to which the district court denied relief
on the merits, he “must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong”. Id. To the extent the district court
rejected a claim on procedural grounds without reaching the
3 In the alternative, even assuming the six new COA requests are subsumed within those presented to the district court, we would not grant a COA for any of them, essentially for the reasons stated in the denial by the district court of habeas relief on these or similar issues, and because Delk fails to satisfy the standards for granting a COA, discussed infra.
7 underlying constitutional issue, Delk must show “jurists of reason
would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and ... jurists of reason
would find it debatable whether the district court was correct in
its procedural ruling”. Id.
“[T]he determination of whether a COA should issue must be
made by viewing [Delk]’s arguments through the lens of the
deferential scheme laid out in 28 U.S.C. § 2254(d)”. Barrientes v.
Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert. dismissed, 121 S.
Ct. 902 (2001). When a claim has been adjudicated on the merits in
state court, a federal habeas court must defer to the state court’s
decision unless it “[is] contrary to, or involve[s] an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or ... [is] based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding”. 28 U.S.C. § 2254(d)(1)
& (2).
A decision is “contrary to ... clearly established Federal
law, as determined by the Supreme Court of the United States ... if
the state court arrives at a conclusion opposite to that reached by
th[e] Court on a question of law or if the state court decides a
case differently than th[e] Court has on a set of materially
indistinguishable facts”. Williams v. Taylor, 529 U.S. 362, 412-13
(2000). A decision “involve[s] an unreasonable application of []
8 clearly established Federal law, as determined by the Supreme Court
of the United States ... if the state court identifies the correct
governing legal principle from th[e] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s
case”. Id. A state court’s findings of fact are presumed to be
correct unless the petitioner rebuts the presumption by “clear and
convincing evidence”. 28 U.S.C. § 2254(e)(1).
A.
COA request 1 concerns Delk’s claim that the Court of Criminal
Appeals’ post-conviction refusal to fund a thorough mental health
examination denied him full and fair consideration of his claim of
incompetence to proceed at state habeas, which rendered the state
evidentiary record incomplete and unreliable, and its competence-
finding unworthy of deference.
The state habeas court found Delk did not meet his burden of
proving he was either incompetent to assist his habeas counsel or
had insufficient ability to understand either factually or
rationally the proceedings against him. The district court adopted
the magistrate judge’s recommendation that this finding was not
unreasonable, in the light of the evidence presented at the state
habeas evidentiary hearing, including: Delk has a history of
manipulation; he finds it in his best interest to appear
incompetent when an audience is available; and, if he wishes to do
so, he has the ability to consult with his lawyer with a reasonable
9 degree of rational understanding. The district court concluded:
Delk was given an adequate opportunity to present his factual
claims to the state court; and the state habeas court’s finding
that Delk was competent to proceed at state habeas was supported by
testimony at the state habeas evidentiary hearing, which
demonstrated Delk is coherent when he wants to be and has been
diagnosed as feigning mental illness in order to avoid execution.
Delk is not entitled to a COA on this claim because he has not
demonstrated that “reasonable jurists would find the district
court’s assessment of [this] claim[] debatable or wrong”. Slack,
529 U.S. at 484. He cites no authority for the proposition that
the Constitution requires a death row inmate to be mentally
competent to assist counsel in pursuing state habeas relief or to
participate in state habeas proceedings. Along this line, our
court has noted that the Supreme Court has not mandated addition of
an “assistance prong” to the standard for determining competency to
be executed. See Barnard v. Collins, 13 F.3d 871, 877 n.4 (5th
Cir.), cert. denied, 510 U.S. 1102 (1994). Therefore, Delk seeks
the announcement of a new rule of criminal procedure which cannot
be applied retroactively on collateral review (Teague-barred).
See, e.g., Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (federal
court may not grant “habeas relief to a state prisoner based on a
rule announced after his conviction and sentence became final”);
10 Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality). Delk does
not claim an exception to this nonretroactivity principle.
Although the state habeas court conducted an evidentiary
hearing to determine Delk’s competency to proceed at state habeas,
it was not constitutionally required to do so. Accordingly, Delk
is not entitled to a COA on the ground that the state court’s
competency finding is not entitled to deference because of the lack
of adequate funding for a thorough mental health examination,
because alleged deficiencies in state habeas proceedings are not a
basis for federal habeas relief. See Nichols v. Scott, 69 F.3d
1255, 1275 (5th Cir. 1995) (“An attack on a state habeas proceeding
does not entitle the petitioner to habeas relief in respect to his
conviction, as it is an attack on a proceeding collateral to the
detention and not the detention itself.” (emphasis added; internal
quotation marks and citation omitted)), cert. denied, 518 U.S. 1022
(1996); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992)
(“infirmities in state habeas proceedings do not constitute grounds
for federal habeas relief” (emphasis added)), cert. denied, 507
U.S. 1056 (1993).
B.
COA request 2 concerns Delk’s related claim that the district
court erred by refusing to fund a mental health examination and
conduct an evidentiary hearing to determine his competency to
participate in federal habeas proceedings. He maintains such a
11 hearing is required by Mata v. Johnson, 210 F.3d 324 (5th Cir.
2000).
The district court adopted the magistrate judge’s
recommendation that Delk’s claim of incompetence to assist his
attorney in the federal proceeding could be resolved on the basis
of the state court’s findings. In denying a COA for this claim,
the district court noted that the evidence presented by Delk did
not raise a bona fide doubt as to his competency, and stated that
Delk had not demonstrated “why a reasonable person might find”
otherwise.
Delk is not entitled to a COA on this claim because he has not
demonstrated that “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and ... whether the district court was correct
in its procedural ruling”. Slack, 529 U.S. at 484. As is the case
in regard to his claim regarding competency to proceed at state
habeas, Delk cites no authority holding that the Constitution
requires a death row inmate to be mentally competent to assist
counsel in pursuing federal habeas relief; therefore, this claim is
also Teague-barred.
Contrary to Delk’s assertion, Mata does not mandate a federal
evidentiary hearing on his claim of incompetency to participate in
federal habeas proceedings. Mata dealt with “whether the district
court conducted a constitutionally adequate fact-finding inquiry to
12 make a reliable determination of Mata’s competency to abandon
collateral review of his capital murder conviction and sentence”.
Mata, 210 F.3d at 327. Mata applied Supreme Court precedent
requiring that a habeas petitioner be competent to abandon
collateral review in a capital case. Id. at 327-28. There is no
similar constitutional requirement that a petitioner be competent
to participate in a federal habeas proceeding; accordingly, the
district court was not required to conduct an evidentiary hearing
on Delk’s competence to participate. See Hicks v. Wainwright, 633
F.2d 1146, 1150 (5th Cir. Unit B 1981) (“When the only question is
legal rather than factual no evidentiary hearing is needed.”),
quoted in Barrientes, 221 F.3d at 770.
C.
Delk’s COA request 5 concerns his claim that the trial court
violated his Sixth and Fourteenth Amendment rights by excusing for
cause nine venire members on the ground that they could not impose
death as a penalty.
“[T]he proper standard for determining when a prospective
juror may be excluded for cause because of his or her views on
capital punishment ... is whether the juror’s views would prevent
or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath”. Wainwright v.
Witt, 469 U.S. 412, 424 (1985) (internal quotation marks omitted).
A venire member’s being excused for cause is an implicit finding of
13 bias, which is presumptively correct under 28 U.S.C. § 2254(e)(1).
See id.; see also McFadden v. Johnson, 166 F.3d 757, 758 (5th
Cir.), cert. denied, 528 U.S. 947 (1999); Williams v. Collins, 16
F.3d 626, 633 (5th Cir.), cert. denied, 512 U.S. 1289 (1994).
The state habeas court found Delk failed to meet his burden of
proving the nine venire members had not disqualified themselves by
their statements to the trial judge, considered in the context of
their accompanying demeanor and vocal inflections, that, because of
their views on capital punishment, they could not answer the
special issues affirmatively based on the evidence. The district
court denied relief on this claim because the record demonstrated
the nine were properly excused because they could not follow the
law.
Delk is not entitled to a COA for this claim because he has
not demonstrated that “reasonable jurists would find the district
court’s assessment of [this] claim[] debatable or wrong”. Slack,
529 U.S. at 484. As the district court noted, the record supports
the trial court’s presumptively-correct, implicit finding that the
nine unambiguously stated they would not administer a death
sentence under any circumstances. Delk has not rebutted these
presumptively-correct findings, nor has he demonstrated the state
trial court’s rulings were “based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding”. 28 U.S.C. § 2254(d)(2).
14 D.
Delk’s COA request 7 concerns his claim that the Court of
Criminal Appeals’ refusal, at state habeas, to fund needed
discovery and to compel the attendance of Tina Delk, Richard Frye,
and the prosecutor’s former investigator at the state habeas
evidentiary hearing denied him full and fair consideration of his
Brady and Strickland claims, which rendered their denial unworthy
of deference by the district court.
Delk’s Brady claim, asserted in his state habeas application,
but not as a ground for federal habeas relief, was: the
prosecution failed to disclose that Florida authorities did not
intend to prosecute Delk for the Florida murder which Tina Delk had
reported to them; and this could have been used to impeach Tina
Delk’s testimony at the penalty phase (that Delk told her he had
committed that murder). During the state habeas proceeding, Delk
expanded his Brady claim to include allegations that the
prosecution failed to disclose Tina Delk had been a child
prostitute with mental problems.
Among the Strickland claims asserted by Delk in his state
habeas application, and as grounds for federal habeas relief, were
that counsel rendered ineffective assistance: at voir dire, by
failing to attempt to rehabilitate the nine persons excused for
cause; and at the penalty phase, by failing to investigate both the
15 backgrounds of the State’s witnesses for impeachment material and
Delk’s mental health.
The state habeas court found: Delk’s “writ counsel’s efforts
to induce the Court to issue bench warrants, subpoenas and to
authorize[] out of state depositions for the stated purpose of
obtaining ‘impeachment information’ about state witnesses, have
never been accompanied by any representation or allegation by writ
counsel that would lead a rational [trier] of the facts to believe
that these efforts are anything more than a ‘fishing expedition’”;
and Delk did not satisfy his burden of proving the State failed to
furnish him with adequate financial resources to timely investigate
and present his claims. It concluded that trial courts in post-
conviction habeas proceedings are not required to compel attendance
or testimony of witnesses who testified at trial, absent a showing
they “have testimony to offer which would if taken as true
establish grounds for habeas relief”.
Regarding Delk’s claim that the Texas state courts did not
adequately fund his habeas proceeding to allow full development of
the record, the magistrate judge recommended a constitutional claim
was not stated. The district court adopted that recommendation,
and also denied Delk’s request for an abatement of the federal
proceeding until his counsel had additional time to complete
background investigations of Frye and Tina Delk. The district
court observed: Delk was given an adequate opportunity to present
any factual claims in state court; his claims were the subject of
16 a state evidentiary hearing; and no further discovery was
necessary.
not demonstrated “reasonable jurists would find the district
court’s assessment of [this] claim[] debatable or wrong”. Slack,
529 U.S. at 484. As discussed supra, infirmities in state habeas
proceedings do not constitute grounds for federal habeas relief.
In any event, the state court’s refusal to allow discovery for this
claim, or to finance a Chicago-area investigation of the
backgrounds of Tina Delk and Frye, was not unreasonable, because
Delk’s claim that discovery and funding of such an investigation
would likely reveal more useful impeachment information is
speculative. See Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir.)
(“Allegations that are merely ‘conclusionary’ or are purely
speculative cannot support a Brady claim.”), cert. denied, 121 S.
Ct. 380 (2000); see also id. at 816-17 (federal rules governing §
2254 cases do not “authorize fishing expeditions”).
III.
For the foregoing reasons, a COA is
DENIED.