Caldwell v. Johnson
| Decision Date | 18 September 2000 |
| Docket Number | 5,0010934 |
| Parties | JEFFREY HENRY CALDWELL, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT |
| Court | U.S. Court of Appeals — Fifth Circuit |
Application for Certificate of Appealability and Stay of Execution from the United States District Court For the Northern District of Texas, Dallas Division
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
Today we examine Texas's response to the decision of the Supreme Court1 that the Constitution forbids the execution of an insane person. Securing this "right" turns the focus from validity of conviction and sentence with its search for historical fact to an inquiry into the present mental state of an accused, more precisely his present mental state, and at a point of time in the near future. This elevation to constitutional status of common law and statutory rules and resulting shift in focus has prompted responses by the state and a procrustean enterprise of the judiciary to fit Ford issues within our procedural apparatus for post-trial review of conviction and sentence.2 That fit is the backdrop to today's decision. We conclude that Texas has afforded the petitioner all process constitutionally due. We refuse to issue a certificate of appealability or to stay the scheduled execution.
Jeffrey Henry Caldwell is scheduled to be executed on August 30, 2000, by the State of Texas for the crime of capital murder. The Texas Court of Criminal Appeals affirmed his conviction and sentence in 1991. Caldwell v. State, 818 S.W.2d 790 (Tex. Crim. App. 1991), cert. denied, 112 S.Ct. 1684 (1992). Caldwell first sought federal habeas relief, but his petition was dismissed without prejudice for failure to exhaust state remedies by the Northern District of Texas on September 9, 1993. Caldwell then filed a post-conviction application in the state trial court in November of 1993. That application was denied in 1994 by Judge Gerry Meier of the 291st District Court in Dallas County, Texas. A second post-conviction application was filed with Judge Meier on March 22, 1995. She denied relief on March 30, 1995. The Texas Court of Criminal Appeals affirmed that denial of relief on March 31, 1995.
On May 30, 1995, Caldwell filed a petition for writ of habeas corpus in the Northern District of Texas, asserting numerous claims. The district court denied all relief in January of 1999, declining Caldwell's motion for leave to amend the petition to include a claim under Ford v. Wainwright. On February 18, 1999, we granted a certificate of probable cause to appeal but affirmed the denial of relief on all claims and also affirmed the refusal of leave to amend. We concluded that Caldwell's Ford claim was premature, pointing out that the Texas legislature had recently provided a procedure for testing the competency of a person to be executed under Article 46.04 of the Texas Code of Criminal Procedure, effective September 1, 1999. On April 11, 1999, the trial court scheduled Caldwell's execution for August 30, 2000. The Supreme Court denied certiorari and a stay of execution on August 23, 2000.3
On June 28, 2000, the State of Texas filed with Judge Meier a "Request for Psychiatric Examinations and Determination of Competency," pursuant to the Texas Code of Criminal Procedure, Article 46.04.
The State's motion cited occasions in which Caldwell's competency had surfaced over the course of this prosecution. It observed that, while Caldwell did not offer a defense during the punishment phase, the State had called a psychiatrist who, responding to a hypothetical question, expressed the opinion that Caldwell was a sociopath. The witness explained that Caldwell knew right from wrong but chose to do wrong.
The State also pointed to the affidavit of Dr. Phillip J. Murphy, obtained in connection with the first application for writ of habeas corpus filed in the state trial court in 1993. In the affidavit Dr. Murphy swore that his preliminary examination demonstrated serious mental illness that could only be conclusively determined through further examination and testing; that he was unable to do so without funding.
Dr. Murphy expressed the view that "the defendant's reality level was best described as psychotic"; that his Bender-Gestalt test indicated brain damage; that while he needed additional tests, execution may not be appropriate for a person with these disorders.
The State pointed out that Caldwell in his first State petition had claimed that his counsel was ineffective for not investigating and offering evidence of his mental problems; that the trial court should have instructed the jury regarding a severe mental disorder. The State observed that the defendant raised the same issues in his second federal writ and that the district court, affirmed by this court, had rejected the claims of ineffective assistance of counsel.
In its motion of June 28 the State took the position that the prosecution did "not believe that the defendant is suffering from any mental disorders rendering him incompetent to be executed," but that "as a precautionary measure," the district court ought to appoint two qualified mental health professionals to evaluate his mental competence. Without opposition from Caldwell, the district court granted the motion on August 9, 2000. It appointed two psychiatrists to examine Caldwell. Both reported back to the district court that Caldwell did not cooperate and refused to confer with them.4
Caldwell filed an application for state writ of habeas corpus on August 16, claiming he is not competent and requesting funding to obtain mental health experts of his own choosing. As summarized in the State's response:
In raising his claim of incompetency to be executed in the state courts, Caldwell relied upon a 1992 psychological evaluation performed by Philip Murphy and a 1998 affidavit of one of his attorneys, Peter MacMillan. Without addressing the issue of competency to be executed (or to stand trial), Dr. Murphy was of the opinion that Caldwell possessed a low I.Q., suffers from organic brain damage, and presents a "serious thought disorder of either a paranoid or schizophrenic nature." MacMillan averred that correspondence he had received from Caldwell indicated to him that Caldwell failed to appreciate the factual basis that led to his conviction and the severity of the punishment for his crime.
On August 18, Judge Meier filed a "notation of subsequent writ application," concluding that:
This Court further finds that to the extent applicant's current subsequent writ application could be construed as a motion pursuant to Article 46.06 of the Texas Code of Criminal Procedure, the pleadings fail to make a substantial showing of Caldwell's incompetency to be executed as required by Article 46.04(f).
She then directed that the Clerk of the Court forward the relevant papers to the Texas Court of Criminal Appeals.
Caldwell's counsel then filed with the Texas Court of Criminal Appeals his "subsequent application for writ of habeas corpus, motion for appointment and compensation of counsel, and motion for funding for mental health experts." On August 28, a divided Texas Court of Criminal Appeals dismissed by written opinion Caldwell's application.
The court treated Caldwell's motion as an effort to invoke the procedures of Article 46.04. It first noted that Article 46.04 made no provision for the appointment of counsel, holding that while the "trial court could appoint counsel in any given case," it did not abuse its discretion here. The court explained it had neither the authority to remand for a hearing nor authority to grant funds to hire mental health experts to assist in the hearing. By the Texas Court of Criminal Appeal's reading, it had authority under Art. 46.04 only to review a finding by the trial court that a defendant is incompetent; it had no jurisdiction to review a "finding of a substantial showing of incompetence or, after a hearing takes place, the finding that the defendant is competent to be executed."
Caldwell then filed a petition for writ of habeas corpus and stay of execution on August 29, 2000, with the United States District Court, Northern District of Texas. The return to federal court relies upon the Supreme Court's decision in Stewart v. Martinez-Villareal, 118 S.Ct. 1618 (1998) that "respondent's Ford claims here - previously dismissed as premature - should be treated in the same manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies," 118 S.Ct. at 1622 - specifically that his Ford claim is not a successive petition. Texas concedes that the present petition is not successive.5
Caldwell's federal petition combines several contentions in a single narrative. As best we can discern, read most favorably to Caldwell, he attacks Article 46.04 on six grounds. He contends that, as construed by the Texas Court of Criminal Appeals, there is no right of appeal from a decision by a state trial court finding a petitioner to be competent for execution. Second, that the statute both facially and as applied denies Caldwell his right "to be evaluated by mental health professionals of his own choosing." Third and relatedly, he contends that since Caldwell is indigent, he would be unable to hire such assistance and hence he is entitled to state funding for that purpose. Fourth, that Texas denied him the assistance of medical experts in preparing for his competency hearing and offering both expert advice and testing. Fifth, he broadly contends that since his Ford claim has never been determined on the merits by any court, he is entitled to a hearing in federal court. Finally, Caldwell appears to question the state trial court's holding that he did not make a substantial showing of competency.
The United States...
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