Filed: Jul. 02, 1999
Latest Update: Mar. 02, 2020
Summary: REVISED, June 30, 1999 UNITED STATES COURT OF APPEALS For the Fifth Circuit _ No. 98-40166 _ ALVIN WAYNE CRANE, Petitioner-Appellant, VERSUS GARY JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. _ Appeal from the United States District Court For the Eastern District of Texas _ June 8, 1999 Before KING, DAVIS, and WIENER, Circuit Judges. W. EUGENE DAVIS, Circuit Judge: Alvin Wayne Crane, convicted of murder and sentenced to death by a Texas sta
Summary: REVISED, June 30, 1999 UNITED STATES COURT OF APPEALS For the Fifth Circuit _ No. 98-40166 _ ALVIN WAYNE CRANE, Petitioner-Appellant, VERSUS GARY JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. _ Appeal from the United States District Court For the Eastern District of Texas _ June 8, 1999 Before KING, DAVIS, and WIENER, Circuit Judges. W. EUGENE DAVIS, Circuit Judge: Alvin Wayne Crane, convicted of murder and sentenced to death by a Texas stat..
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REVISED, June 30, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 98-40166
___________________________
ALVIN WAYNE CRANE,
Petitioner-Appellant,
VERSUS
GARY JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
___________________________________________________
Appeal from the United States District Court
For the Eastern District of Texas
___________________________________________________
June 8, 1999
Before KING, 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 possesion 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
1
Article 37.071 then provided:
(1) [W]hether the conduct of the defendant that caused
the death of the deceased was committed deliberately and
with the reasonable expectation that the death of the
deceased or another would result;
(2) whether there is a probability that the defendant
would commit criminal acts of violence that would
constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in
response to the provocation, if any, by the deceased.
2
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
3
(“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.
4
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
5
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
6
be denied. The Texas Court of Criminal Appeals adopted the trial
court’s finding number nine,2 which provides in part:
[T]he 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
persistent, recurrent headaches over the right frontal region.
Trial counsel then consulted Dr. Joseph Batson, a neurologist, who
examined Crane in September 1987. Dr. Batson ordered a CT scan and
an EEG, both of which failed to show any abnormality.
In light of this information, trial counsel decided that
although they would introduce these medical records before the
2
Although Crane argues that the Texas Court of Criminal
Appeals declined to adopt the trial court findings on the claims of
ineffective assistance of counsel for failure to investigate an
insanity defense and for failure to present mitigating evidence at
the punishment phase, the Texas Court of Criminal Appeals only
rejected the trial court findings that these claims were
procedurally barred.
7
jury, they would not further develop the insanity issue. In
affidavits attached to the State’s answer to Crane’s second state
habeas petition, Gene Storrs and Stephen Cross stated that they had
investigated the merits of raising an insanity defense but were not
confident that the evidence was adequate to raise the issue. The
examinations conducted by Dr. Buben and Dr. Batson suggested that
even if Crane had some dysfunction due to his motorcycle accident,
this dysfunction did not rise to the level of interfering with his
abilities to act intentionally and deliberately. Trial counsel
also stated that they were concerned about opening the door to
damaging testimony concerning Crane’s violent tendencies if the
issue of insanity were raised.
Thus, Crane’s trial counsel did investigate the possibility of
an insanity defense, but, relying on the reports of Drs. Buben and
Batson, as well as their own observations of Crane, they made a
tactical decision not to raise this defense due to the lack of
sufficient evidence and their concern about drawing damaging
rebuttal psychiatric testimony from the State. “A conscious and
informed decision on trial tactics and strategy cannot be the basis
for constitutionally ineffective assistance of counsel unless it is
so ill chosen that it permeates the entire trial with obvious
unfairness.” Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)
(on rehearing). The evidence shows that trial counsel’s decision
not to present an insanity defense was a “conscious and informed”
tactical one. Therefore, we conclude that Crane has not made a
substantial showing of the denial of a constitutional right on this
claim of ineffective assistance of counsel.
8
B.
Crane next contends that his trial counsel were ineffective
for failing to present at the punishment phase of his trial
mitigating evidence that was either known or should have been known
to them. Crane maintains that his counsel did not present
mitigating evidence of his family background or his possible mental
impairment. The magistrate judge conducted a two-day evidentiary
hearing on the issue of counsel’s performance at the punishment
phase and found that trial counsel made a strategic decision not to
introduce available mitigating evidence for the following reasons.
Counsel believed that Crane’s best chance of prevailing at the
penalty phase was to obtain a favorable jury response on the future
dangerousness issue. Alternatively, counsel wanted to preserve the
objection on appeal that an affirmative answer to the future
dangerousness issue was not supported by sufficient evidence.
Because counsel believed that the available mitigating evidence
would likely have drawn rebuttal evidence from the State that would
have bolstered the State’s argument on future dangerousness, they
did not introduce this evidence so as not to defeat their strategy.
We have made it clear that the failure to present mitigating
evidence does not per se demonstrate ineffective assistance of
counsel. Rector, 120 F.3d at 564. “If such an omission is based
on well informed, strategic decisions, it is ‘well within the range
of practical choices not to be second-guessed.’”
Id. (quoting
Wilkerson v. Collins,
950 F.2d 1054, 1065 (5th Cir. 1992), cert.
denied,
509 U.S. 921,
113 S. Ct. 3035,
125 L. Ed. 2d 722 (1993)).
After carefully reviewing the record, we conclude that Crane has
9
failed to establish that his counsel were deficient in declining to
present the mitigating evidence concerning Crane’s alleged mental
impairment and his family background.
As to the evidence concerning Crane’s possible mental
impairment, trial counsel testified that after investigating a
possible mental impairment,3 they were concerned that the evidence
would have been aggravating because it would have necessarily
revealed Crane’s “rages” and “blackouts” that accompanied the
alleged mental impairment. Furthermore, they had reason to believe
that if they put on such psychiatric evidence, the State would have
called a psychiatrist to testify about Crane’s violent tendencies.
Bruce Roberson, the Ochiltree County Attorney who prosecuted Crane,
confirmed that counsel’s concerns were well founded. He testified
at the evidentiary hearing that the State would have presented its
own psychiatric evidence, specifically the testimony of Dr. James
Grigson, to rebut any evidence of Crane’s possible mental
impairment presented by the defense. Given the equivocal nature of
the expected testimony of Drs. Buben and Batson, counsel concluded
that the risk of drawing damaging psychiatric testimony from the
State outweighed the benefits of this evidence. Additionally, the
district court, after hearing the testimony of several doctors at
the evidentiary hearing, found that Crane failed to show any
reliable evidence of mental impairment.
Trial counsel believed that evidence of Crane’s family
background also would have been more harmful than helpful on the
3
See discussion in section II.A., supra.
10
future dangerousness issue.4 Gene Storrs testified that he thought
that the danger of family members testifying on cross examination
about Crane’s fits of rages and blackouts far outweighed any
benefit that Crane might have received from family members saying
that they felt like Alvin Crane was a “nice man.”
All of the evidence that Crane contends should have been
presented at the punishment phase of his trial had a double-edged
quality. Trial counsel decided the evidence was potentially more
harmful than helpful. Such strategic decisions are given a “‘heavy
measure of deference.’” Mann v. Scott, 41 F.3d 968, 984 (5th Cir.
1994), cert. denied,
514 U.S. 1117,
115 S. Ct. 1977,
131 L. Ed. 2d 865
(1995) (quoting
Wilkerson, 950 F.2d at 1054). Crane has failed to
overcome the strong presumption that these informed tactical
decisions were reasonable under the circumstances. Boyle v.
Johnson,
93 F.3d 180, 188 (5th Cir. 1996). Therefore, Crane has
also failed to show that counsel’s performance was deficient in
declining to produce the mitigating evidence discussed above.
Relatedly, Crane contends that his trial counsel were
ineffective for failing to have a confidential mental health expert
appointed under Ake v. Oklahoma.5 With a confidential mental
health expert, Crane argues, his trial counsel could have further
investigated a possible mental impairment without the fear that any
harmful opinion the expert reached would be divulged to the State.
4
Although Crane contends that trial counsel did not
investigate his family background, billing records show that trial
counsel spent approximately five hours talking with Crane’s wife
and his mother.
5
470 U.S. 68,
105 S. Ct. 1087,
84 L. Ed. 2d 53 (1985).
11
Crane’s argument fails to take into account his trial counsel’s
primary reason for declining to pursue this line of defense - a
belief that the State would have learned that a psychiatrist had
been appointed and that the State would have produced damaging
evidence of future dangerousness in rebuttal. However, even
assuming that trial counsel erred in failing to seek the
appointment of a confidential mental health expert, Crane has not
shown how he suffered prejudice from this failure. Crane produced
no persuasive psychiatric evidence in the district court that if
produced at trial, would have undermined confidence in the
resulting verdict. Therefore, this claim is also without merit.
IV.
Crane has also made claims that he was improperly denied a
mental health expert to determine his competency at the time of the
offense; that the State failed to disclose or turn over exculpatory
evidence; that the Texas special issues are unconstitutionally
vague; that the trial court erred in excusing for cause prospective
juror Rita Solomon; that the trial court erred in excluding certain
evidence; that the prosecutor made improper comments on Linda
Crane’s failure to testify; and that Stephen Cross had a conflict
of interest. Based upon our review of the record and the briefs
and for reasons stated by the magistrate judge in his report and
recommendation of June 24, 1997, and the additional reasons
assigned by the district court on August 20, 1997, we agree that
the district court correctly denied habeas relief.
Because Crane has failed to make a substantial showing of a
denial of a constitutional right, he is not entitled to a CPC.
12
Therefore, we DENY a CPC and VACATE the stay of execution.
13
