114 F.3d 491 (5th Cir. 1997), 96-10027, Fuller v. Johnson

Docket Nº:96-10027.
Citation:114 F.3d 491
Party Name:Aaron Lee FULLER, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Case Date:May 30, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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114 F.3d 491 (5th Cir. 1997)

Aaron Lee FULLER, Petitioner-Appellant,


Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 96-10027.

United States Court of Appeals, Fifth Circuit

May 30, 1997

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Floyd D. Holder, Jr., Lubbock, TX, Melissa B. Romine, Morgan & Weisbrod, Dallas, TX, for Petitioner-Appellant.

Laura Bayouth Popps, Assistant Attorney General, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, WIENER and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Aaron Lee Fuller, sentenced to death for the robbery, murder, and sexual assault of Loretta Stephens, appeals the district court's denial of his petition for writ of habeas corpus. We affirm.


The contemptible facts of this death penalty case need not detain us long. Most of the details are set forth in Fuller v. State, 829 S.W.2d 191 (Tex.Crim.App.1992) (en banc), cert. denied 508 U.S. 941, 113 S.Ct. 2418, 124 L.Ed.2d 640 (1993). Loretta Stephens was beaten to death in her home during a theft, then sexually assaulted and dumped in the tall weeds on the side of Highway 87 north of Lamesa, Texas. During questioning by police, petitioner Aaron Fuller offered several

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different accounts of his involvement, some implicating one Juan Gomez. Fuller eventually confessed to murdering and sexually assaulting Ms. Stephens by himself, then disposing of the body without Gomez's knowledge.

When it became clear at trial that the state was seeking the death penalty, Fuller recanted his confession, seeking to implicate Gomez once again. Fuller's theory at trial was that Gomez beat Ms. Stephens to death with a six-inch metal pipe while Fuller went through her purse in another room. At the guilt/innocence phase of trial, prosecutors refuted this theory with autopsy evidence from Dr. Ralph Erdmann showing that Ms. Stephens's injuries were more consistent with blows from a fist than from a pipe. The State introduced physical evidence from Ms. Stephens's house tending to show that Fuller committed both crimes. The jury found Fuller guilty of capital murder.

At the punishment phase of the trial, the State introduced evidence as to Fuller's future dangerousness, including testimony by psychiatrist James Grigson that Fuller would represent a continuing threat to society. The State also introduced evidence that Fuller belonged to the Aryan Brotherhood, a violent neo-nazi prison gang. The jury sentenced Fuller to death.

Different courts stayed Fuller's execution while he exhausted both direct appeals and state petitions for habeas corpus. He petitioned the federal district court for habeas corpus relief under 28 U.S.C. § 2254, and the district court denied his petition, vacated its stay of execution, and denied a certificate of probable cause.

Fuller now appeals, asserting five challenges to the constitutionality of his death sentence: (1) the state introduced false testimony regarding Ms. Stephens's autopsy; (2) the state introduced false testimony regarding future dangerousness; (3) the state did not prove that Fuller was a member of, or shared beliefs with, the Aryan Brotherhood prison gang, and therefore could not inject evidence of the group's beliefs into his murder trial; (4) the state improperly excluded a juror based on her views about the death penalty; and (5) the court wrongly refused his request for state-sponsored expert assistance.


Thirteen days after Fuller filed his appellate brief, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"). This new law modifies the statutes governing habeas corpus cases, providing for a one-year statute of limitations, requiring a "certificate of appealability" for circuit court review, and limiting successive habeas petitions.

The AEDPA amends 28 U.S.C. § 2253, which had imposed a jurisdictional requirement that a federal court issue a certificate of probable cause ("CPC") before a circuit court heard a habeas appeal. Section 2253, as amended, requires a district or circuit court to grant a "certificate of appealability" ("COA"), which must indicate which issues in a habeas appeal make a substantial showing of the denial of a constitutional right. We interpret Fuller's request for a CPC as an application for COA. Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). Accord: Herrera v. United States, 96 F.3d 1010, 1012 (7th Cir.1996); Reyes v. Keane, 90 F.3d 676, 680 (2d Cir.1996).

We grant Fuller's COA on four issues because he has made a substantial showing of the denial of a constitutional right in each. However, we deny COA on Fuller's challenge to the district court's denial of state-sponsored expert assistance on his habeas petition. We resolve doubts about whether to grant a COA in favor of the petitioner, see Buxton v. Collins, 925 F.2d 816, 819 (5th Cir.), cert. denied, 498 U.S. 1128, 111 S.Ct. 1095, 112 L.Ed.2d 1197 (1991), and we may properly consider the severity of the penalty in making this determination. See Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983); Buxton, 925 F.2d at 819. On the first four issues, Fuller raises questions that are debatable among jurists of reason, and he has made an adequate showing

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to proceed further. Clark v. Collins, 956 F.2d 68, 71 (5th Cir.), cert. denied, 503 U.S. 901, 112 S.Ct. 1254, 117 L.Ed.2d 485 (1992).

COA notwithstanding, the government argues that 28 U.S.C. § 2254(e)(2), as amended by AEDPA section 104, precludes our review of most of Fuller's first and second challenges. Amended section 2254(e)(2) provides that:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

By its own terms, amended section 2254(e)(2) only curtails evidentiary hearings, not appellate review of cases, and in any event, the district court conducted an evidentiary hearing on these issues more than three months before the President signed the AEDPA into law. Therefore we find that the amended provision of section 2254(e)(2) does not affect our review of the merits, to which we now turn.



Fuller first claims that coroner Ralph Erdmann failed to perform the scientific procedures necessary to disprove Fuller's alternative theory that Gomez beat Ms. Stephens to death with a pipe, and that Dr. Erdmann's testimony was therefore fraudulent. At trial Dr. Erdmann testified that the injuries Ms. Stephens sustained were more consistent with infliction by fist than by pipe. Fuller introduces for the first time on habeas appeal the affidavit of Dr. Sparks Veasey, who claims that it is impossible to make that determination without stripping the dura and brain matter from the base of the skull to determine whether or not skull fractures were present. Dr. Veasey also contends that, based on photos of the autopsy, Dr. Erdmann did not strip the dura.

Dr. Erdmann also testified that he did not take a vaginal swab of the deceased to detect or analyze any semen because, he said, she had been dead too long to do a proper analysis. Dr. Erdmann testified that after eight hours sperm becomes undetectable. Dr. Veasey, however, testified in the evidentiary hearing that sperm would have been detectable well after eight hours following death. Fuller contends that Dr. Erdmann's testimony on both counts is false and misleading and that the State's use of such false testimony violates the Fifth, Eighth, and Fourteenth Amendments of the Constitution.

To establish a due process violation based on the government's use of false or misleading testimony, the defendant must show (1) that the witness's testimony was actually false, (2) that the testimony was material, and (3) that the prosecution knew the witness's testimony was false. Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); May v. Collins, 955 F.2d 299, 315 (5th Cir.), cert. denied, 504 U.S. 901, 112 S.Ct. 1925, 118 L.Ed.2d 533 (1992). Fuller has failed to meet this burden.

Fuller has not shown that Dr. Erdmann's testimony about the cause of death was actually false. Dr. Erdmann testified that the bruises and cuts on the face of the deceased were more consistent with blows from fists than with blows from a pipe. Fuller had an opportunity at trial to challenge whether the autopsy provided sufficient evidence to reach Dr. Erdmann's conclusions, and he failed to do so. To dispute Dr. Erdmann's conclusion is not to prove that it is "false." Fuller has shown nothing about Dr. Erdmann's opinion to be actually false; he has only challenged the methods by which Erdmann reached those conclusions. The

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proper place for such a challenge is in cross-examination, not on collateral review.

Dr. Erdmann's statement at trial about the dissipation of semen evidence after eight...

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