Crane v. Johnson

Decision Date08 June 1999
Docket NumberNo. 98-40166.,98-40166.
PartiesAlvin Wayne CRANE, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Allen Richard Ellis, Mill Valley, CA, for Petitioner-Appellant.

Douglas A. Danzeiser, Austin, TX, for Respondent-Appellee.

Before KING, Chief Judge, and DAVIS and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Alvin Wayne Crane, convicted of murder and sentenced to death by a Texas state court, appeals from the district court's denial of his petition for a writ of habeas corpus. Because we conclude that Crane 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.

I.

Crane was convicted of killing Melvin Drum, the Chief Deputy Sheriff of Ochiltree County, Texas. On March 28, 1987, Crane was involved in a domestic dispute with his wife, Linda Crane, at his wife's place of employment, the Spicer residence in Perryton, Texas. Drum was called to investigate the dispute and drove to the Spicer residence. Although Drum was driving an unmarked vehicle and was out of uniform, witnesses testified at trial that a red police light was flashing on the dashboard of his vehicle. After Drum parked his vehicle but before he was able to exit from it, Crane approached him with a shotgun and shot him. Crane then fled but was captured several hours later in Beaver County, Oklahoma.

Crane was tried and convicted of capital murder in Texas state court on November 13, 1987. During the punishment phase of his trial, the State introduced evidence concerning Crane's two convictions for delivery and possession of marijuana. The State also introduced evidence concerning Crane's conviction on a misdemeanor assault charge. Crane introduced no evidence during the punishment phase of his trial.

The jury affirmatively answered the required special issues set out in Tex.Code Crim.P.Ann. art. 37.071,1 and Crane was sentenced to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence. Crane v. State, 786 S.W.2d 338 (Tex.Crim.App.1990).

On November 28, 1990, Crane filed his first petition for writ of habeas corpus in state court. The trial court recommended that Crane's petition be denied, and the Texas Court of Criminal Appeals denied habeas relief on March 11, 1992. Ex Parte Crane, No. 71,250 (Tex.Crim.App. March 11, 1992) (en banc) (per curiam). Crane's petition for a writ of certiorari was denied by the United States Supreme Court on January 11, 1993. Crane v. Texas, 506 U.S. 1055, 113 S.Ct. 983, 122 L.Ed.2d 136 (1993). Crane then filed a second petition for writ of habeas corpus in state court. The trial court entered findings of fact and conclusions of law, recommending that the petition be denied. The Court of Criminal Appeals adopted the trial court's findings of facts and conclusions of law with three exceptions and denied relief. Ex Parte Crane, No. 21,704-04 (Tex.Crim.App. April 19, 1994) (en banc) (per curiam). The United States Supreme Court again denied Crane's petition for a writ of certiorari on October 31, 1994. Crane v. Texas, 513 U.S. 966, 115 S.Ct. 432, 130 L.Ed.2d 344 (1994).

Crane filed the present petition for writ of habeas corpus in federal district court in February 1995. The district court referred the case to a magistrate judge who conducted an evidentiary hearing and recommended that relief be denied. The district court adopted the recommendation of the magistrate judge and denied Crane's claims. Crane filed a notice of appeal and applied for a CPC with the district court. The district court denied the CPC.

II.

Because Crane filed his federal habeas petition prior to the passage of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), the regime set forth in the AEDPA does not apply to the instant appeal. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Therefore, we apply pre-AEDPA habeas law to Crane's claims.

Before the enactment of the AEDPA, a petitioner could not appeal a district court's denial of a habeas petition that concerned detention arising from state court proceedings unless a district or circuit judge granted the petitioner a CPC. Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir.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). This showing requires the petitioner to demonstrate "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.

In reviewing a federal habeas corpus petition presented by a petitioner in state custody, federal courts must accord a presumption of correctness to state court factual findings. See 28 U.S.C. § 2254(d). We review a district court's findings of fact for clear error and issues of law de novo. Moody v. Johnson, 139 F.3d 477, 480 (5th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 359, 142 L.Ed.2d 297 (1998) (citing Barnard v. Collins, 958 F.2d 634, 636 (5th Cir.1992), cert. denied, 506 U.S. 1057, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993)).

III.

Crane's principal claim is that he was denied his Sixth Amendment right to effective counsel. He argues that he received ineffective assistance of counsel because (1) trial counsel failed to investigate and to present readily available evidence of Crane's insanity at the time of the offense, and (2) trial counsel failed to present mitigating evidence at the punishment phase. Neither of these claims has merit.

An ineffective assistance of counsel claim is evaluated under the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Crane must demonstrate both that counsel's performance was deficient and that the deficiency prejudiced the defense such that the result of the trial would have been different. Id. at 687, 104 S.Ct. at 2064. Both prongs must be shown by a preponderance of the evidence. Rector v. Johnson, 120 F.3d 551 (5th Cir.1997). Because an ineffective assistance of counsel claim is a mixed question of law and fact, we review the district court's decision de novo. Green, 116 F.3d at 1122. However, as noted above, the historical findings of fact are entitled to a presumption of correctness. Id. See also Westley v. Johnson, 83 F.3d 714, 720 (5th Cir.1996), cert. denied, 519 U.S. 1094, 117 S.Ct. 773, 136 L.Ed.2d 718 (1997).

To establish the first prong of deficient performance, Crane must show that his trial counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. However, this Court must be "highly deferential" of counsel's performance and must make every effort to "eliminate the distorting effects of hindsight." Id. at 689, 104 S.Ct. at 2065. Therefore, we must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. We will not find ineffective assistance of counsel merely because we disagree with counsel's trial strategy. See Green, 116 F.3d at 1122.

For the second prong, Crane must show a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. However, the mere possibility of a different outcome is not sufficient to prevail on the prejudice prong. Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 361, 139 L.Ed.2d 281 (1997). Rather, the defendant must demonstrate that the prejudice rendered sentencing "fundamentally unfair or unreliable." Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 843, 122 L.Ed.2d 180 (1993)). With this legal background, we turn to a consideration of Crane's specific claims of ineffective assistance of counsel.

A.

Crane first contends that his trial counsel's conduct was professionally unreasonable because they failed to investigate and present evidence of Crane's insanity at the time of the offense. This claim was presented to the state courts in Crane's second state habeas application. The trial court entered detailed findings of fact and conclusions of law and recommended that relief be denied. The Texas Court of Criminal Appeals adopted the trial court's finding number nine,2 which provides in part:

The Court finds that Crane's contention that his trial attorneys did not investigate a possible insanity defense for him is not true. The insanity defense was considered, investigated, and rejected by Crane's trial attorneys. It was rejected for a good reason—it was not a viable defense. The State has obtained numerous affidavits demonstrating that the insanity defense was investigated by defense counsel, and that any such insanity defense would have been spurious.

The district court correctly noted that these findings were entitled to a presumption of correctness under 28 U.S.C. § 2254(d) because they are fairly supported by the record.

Our review of the record shows that Crane's trial counsel, Gene Storrs and Stephen Cross, investigated whether Crane's injuries from a motorcycle accident in 1981 could have resulted in some mental impairment that interfered with Crane's abilities to act intentionally and deliberately. Trial counsel had the report of Dr. Michael Buben, who examined Crane while he was incarcerated in Ochiltree County, which stated that Crane suffered from...

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