116 F.3d 1115 (5th Cir. 1997), 96-50669, Green v. Johnson

Docket Nº:96-50669.
Citation:116 F.3d 1115
Party Name:Ricky Lee GREEN, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Case Date:June 27, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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116 F.3d 1115 (5th Cir. 1997)

Ricky Lee GREEN, Petitioner-Appellant,


Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 96-50669.

United States Court of Appeals, Fifth Circuit

June 27, 1997

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Elizabeth A. Cohen, Maurie Amanda Levine, Austin, TX, for Petitioner-Appellant.

John Dury Jacks, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee.

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.


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.


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

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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.



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

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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.


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...

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