Opinion
Civil Action No. 7:98-CV-008-R
May 9, 2001
MEMORANDUM OPINION AND ORDER
Petitioner James Paul Collier, sentenced to death for capital murder, petitions the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that his conviction and sentence are unconstitutional in several respects. Respondent Gary L. Johnson moves for summary judgment. The Court grants Respondent's motion and denies Petitioner's request for a writ of habeas corpus.
I
On April 19, 1996, Petitioner was convicted of capital murder for the murders of Gwendolyn Joy Reed and Timothy Reed during the same criminal transaction and was sentenced to death on April 24, 1996. (Transcript:265, 281). On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence. See Collier v. State, 959 S.W.2d 621 (Tex.Crim.App. 1998). Briefly recounted, the evidence presented at trial establishes that, on March 14, 1995, Collier entered a house in Wichita Falls where his daughter was spending her spring break vacation and shot and killed Timothy Reed and his mother Gwendolyn Reed. Neither of the victims were related to Petitioner or were involved in any dispute with him, but Petitioner's daughter was living in the house at the time of the murders. (Statement of Facts, vol. 28, pp. 43-44, 51; vol. 29, pp. 125-8). After the murders, Petitioner subsequently drove to New Mexico. After he was apprehended in New Mexico, Petitioner gave a videotaped confession, in which he admitted shooting the victims. (SOF 30:State's Exhibit #3). In this statement, Petitioner stated that he initially went to the house with his shotgun because he was angry with his ex-wife and daughter because they refused contact with him and because he believed that his daughter had been sexually abused by her step-father, who lived in the house as well. (SOF 30:State's Exhibit #3).
Petitioner was sentenced to death by the jury's "yes" and "no" answers, respectively, to the following two special issues:
Is there a probability that the defendant, James Paul Collier, would commit criminal acts of violence that would constitute a continuing threat to society?
Is there, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed?
(Tr:278-9).
In June of 1997, Petitioner filed his initial application for a state writ of habeas corpus in the Texas state courts, in which he alleged that he was entitled to relief based on twenty-four grounds. The state trial court denied relief through ninety-nine findings of fact and conclusions of law dated December 4, 1997. The Court of Criminal Appeals, in turn, denied relief in an unpublished order, based upon the state trial court's findings of fact and conclusions of law and its own review of the record. Ex parte Collier, No. 36, 143-01 (Tex.Crim.App. January 14, 1998). Petitioner subsequently filed a petition for a writ of habeas corpus in this court on October 1, 1999, contending that he is entitled to relief on five grounds. The State filed an answer and motion, for summary judgment on December 13, 1999.
II.
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254, provide:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C.A. § 2254(d) (West 2000).
Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495, 1523 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 120 S.Ct. at 1523.
This amendment applies to all federal habeas corpus petitions which, like the instant case, were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).
III. A.
In his federal petition for writ of habeas corpus, Petitioner alleges the following grounds for relief:
1. Trial counsel was ineffective for failing to present mitigating evidence at the punishment phase of the trial and for failing to object to victim character evidence that was presented by the State during the punishment phase of the trial;
2. The trial court violated Petitioner's rights under the Fifth, Eighth and Fourteenth Amendments to the Constitution by prohibiting Petitioner from conducting voir dire on his parole eligibility if given a life sentence;
3. The trial court denied Petitioner his right of self-representation under the Sixth Amendment to the Constitution by denying Petitioner's request to suppress the original voir dire after he began representing himself in the middle of the voir dire process;
4. Article 11.071 of the Texas Code of Criminal Procedure unconstitutionally limited Petitioner's ability to raise certain issues during the state habeas process by requiring Petitioner's state habeas application to be filed before the Court of Criminal Appeals decided his case on direct appeal; and
5. The Texas Court of Criminal Appeals denied Petitioner's due process rights under the Fourteenth Amendment to the U.S. Constitution by denying his request to appoint a neuropsychologist to evaluate Petitioner during the state habeas process.
B.
In his first ground for relief, Collier asserts that his trial counsel was ineffective for not presenting mitigating evidence at the punishment phase of the trial and for not objecting to victim character evidence that was presented during the punishment phase of the trial. Specifically, Petitioner argues that his trial counsel should have presented testimony from Petitioner's sister and brother-in-law, home movies of Petitioner interacting with his son, and psychiatric evidence and testimony regarding Petitioner's mental state before the murders and during his incarceration at trial. Petitioner further contends that his attorney should have objected to certain testimony given by Tammy Brown, the twin sister of one of the victims and the daughter of the other victim, as inadmissible victim character evidence.The federal constitution guarantees a criminal defendant the effective assistance of counsel, both at trial and on appeal. Strickland v. Washington, 466 U.S.668 (1984); Evitts v. Lucey, 469 U.S. 387, 396 (1985). Whether counsel has been ineffective is determined by using the standard enunciated in Strickland. Under the Strickland test, in order to prove mat his counsel was ineffective, a defendant must prove by a preponderance of the evidence both that counsel's performance was deficient and that this deficient performance prejudiced his defense. 466 U.S. at 687. Courts, however, should "indulge a strong presumption" that counsel's conduct falls within the range of reasonable assistance, and a defendant must overcome the presumption that an action is sound trial strategy. Id. at 689.
Applicable Facts
John Curry was initially appointed to represent Petitioner and did so throughout the pre-trial proceedings and most of the voir dire process. During the voir dire process, Petitioner asserted his right to self-representation, his motion was granted by the trial court after a hearing in which the court determined that he was competent to waive counsel and did so voluntarily, and Petitioner began to represent himself, with Mr. Curry acting as standby counsel. (SOF15:955-1063). During the defense's case-in-chief at the guilt phase of the trial, Petitioner moved to withdraw his waiver of counsel. His motion was granted, the jury was advised of the change, Mr. Curry informed the trial court that he intended to rest the defense's case and did so, and Curry then, represented Petitioner during the charge conference. (SOF 33:876-887, 890). The following day, Petitioner reasserted his right to represent himself, stating that he had been depressed the following day. The trial court again grant Petitioner's motion to represent himself, but denied his request to reopen the case and denied his motion for mistrial. The jury was again informed of the change, and Petitioner made his own closing statement at the guilt phase of the trial in which he acknowledged shooting the victims, but maintained that Timothy Reed was shot only because he and Petitioner were struggling for the gun when it went off. (SOF 33:897-905, 909-18).
Although Petitioner no longer wished to represent himself at this point, he did object to Mr. Curry representing him due to an alleged conflict of interest The trial court noted on the record that it had already ruled earlier on similar allegations and found that there was no conflict of interest. (SOF 33:881).
Before the State presented the last two witnesses in its case-in-chief at the punishment phase of the trial, Petitioner again filed a motion to withdraw from his self-representation, stating on the record that he was not confident enough to continue representing himself. Before accepting reappointment as Petitioner's trial counsel, Curry made a statement to the trial court and Petitioner that he was prepared to cross-examine the State's expert witness, Dr. Richard Coons, but that he did not plan to ask Tammy Brown any questions and that he would rest the defense case after the State rested its case. Curry further stated that he felt that whatever mitigating evidence he believed existed prior to the trial had been undercut by the way that the trial was conducted and that he did not believe that any evidence he could put on would contribute in any meaningful way to the defense's case. Curry also explained that he was making this statement so that Petitioner would understand his intentions, especially as Petitioner had expected Curry to call certain witnesses during the guilt phase of the trial who he did not, in fact, call to the stand. Petitioner stated that, knowing this, he still did not want to represent himself any longer. (SOF 35:183-7). Curry indeed cross-examined Dr. Coons, asked no questions of Tammy Brown and made no objections to her testimony, participated during the charge conference and gave a closing statement as well, but did not present any punishment evidence. (SOF 35:215-40, 246-51). Mr. Curry also made a statement at the bench and outside the presence of the jury, in anticipation of any future allegations of ineffective assistance of counsel, that the record should reflect that Petitioner read the newspaper in view of the jury for ten minutes while the prosecutor questioned Dr. Coons. The trial court acknowledged that the record would reflect this behavior (SOF 35:229-30).
Mitigating Evidence Claim
In support of his claim that his trial counsel was ineffective for failing to present mitigating evidence, Petitioner has submitted an affidavit from John Curry and affidavits from Petitioner's sister and brother-in-law. (Federal Petition, Appendix D). These affidavits were also submitted with his state application. (State Habeas Application, Exhibits B, C, D). In his affidavit, Mr. Curry states that, had Petitioner not represented himself, he intended to call a professor knowledgeable in the Texas prison system to testify that inmates in Texas prisons can be subjected to strict security that greatly lessens their potential for violence. He also would have shown videotaped home movies of Petitioner interacting with his son which he believed showed a more positive side of Petitioner. Mr. Curry further states in his affidavit that he had some mental health records that might have been helpful and that his investigator had spoken to Petitioner's sister, but because Petitioner did not want his family involved, potential mitigating evidence from his family was not pursued. In their affidavits, Petitioner's sister and her husband speak of Petitioner's difficult childhood, his belief that his daughter was being sexually abused by her step-father, his depression and other mental health problems before the murders, and his close bond with his son.
With regards to Petitioner's claim that his counsel was ineffective for not presenting the testimony of Petitioner's sister and brother-in-law, the evidence before this court, as well as the state court, is that Petitioner himself did not want this type of evidence presented. "Great deference must be given to choices which are made under the explicit direction of the client." United States v. Masat, 896 F.3d 88, 92 (5th Circuit 1990), citing Mulligan v. Kemp, 771 F.2d 1436, 1441 (11th Cir. 1985), cert. denied, 480 U.S. 911 (1987). Thus, trial counsel cannot be considered ineffective for failing to present evidence that Petitioner specifically did not want to present. With regard to the medical records that Petitioner alleges his trial counsel should have placed into evidence, Petitioner does not state with any specificity what these documents are. Without any evidence of what these documents might be, this Court cannot determine that counsel was ineffective for failing to place them into evidence.
It should be noted, however, that Petitioner himself called a social worker from the Clay County Mental Health Center as a defense witness at the guilt phase of the trial. She testified that she saw Petitioner on January 2, 1995, when Petitioner reported to her that he had attempted suicide the previous month, was concerned about his daughter, and was having symptoms of depression. She also confirmed that Petitioner saw a counselor at the center on January 12, 1995, but did not attend another appointment scheduled for February. (SOF 31:658-63), Her progress notes were admitted into evidence, as well. (SOF 31:Defendant's Exhibit #9), If these progress notes are the documents to which Petitioner refers, they had already been admitted into evidence, and Petitioner's appointments at the mental health center were known to the jury when the jury deliberated at the punishment phase of the trial.
With regard to the videotapes of Petitioner and his son interacting that Petitioner alleges should have been shown to the jury, Mr. Curry was obviously aware of this evidence, but made the strategic decision not to show this evidence, much as he made the strategic decision not to place into evidence expert testimony about the Texas prison system. As noted by the State in its response, there were good reasons for this decision. In his videotaped confession, Petitioner acknowledged beating his son on more than one occasion, although he was contrite about it. (SOF 30:State's Exhibit #3), Moreover, Petitioner conducted an antagonistic cross-examination of his daughter during the guilt phase of the trial. (SOF 29:148-70). Since the jury had witnessed this cross-examination and viewed the confession, Mr. Curry could have reasonably concluded that home movies of Petitioner interacting with his son may not have been viewed favorably by the jury. The Fifth Circuit has noted that strategic choices made after thorough investigation of the relevant law and facts are virtually unchallengeable. Loyd v. Whitley, 977 F.2d 149, 158 (5th Cir. 1992), cert. denied, 508 U.S. 911 (1993). In the case at hand, trial counsel had investigated and discovered the evidence to which Petitioner refers, but made the strategic decision that the manner in which Petitioner had represented himself throughout the trial made the presentation of the evidence undesirable. Moreover, Mr. Curry advised Petitioner that this would be his strategic choice, and Petitioner agreed that Mr. Curry should represent him for the remainder of the trial. Given that even during the testimony of State's expert witness at the punishment phase of the trial, Petitioner decided to read the newspaper in full view of the jury, trial counsel's determination that the presentation of evidence that would attempt to place Petitioner in a better light was not a good strategy cannot be considered outside the realm of competent performance.
Mr. Curry instead made the strategic decision to give a concise closing statement, in which he referred to Petitioner's difficult childhood, his love for his children, his history of problems with depression, and the lack of evidence that Petitioner had disciplinary problems while in prison in the 1970's. (SOF 35:247-51). Much of this evidence was placed in evidence through Petitioner's videotaped confession and it is similar evidence to that which Petitioner argues that Mr. Curry should have presented through the testimony of other witnesses. Trial counsel's decision to make a closing statement referring to these matters rather than calling witnesses to do the same was effective assistance of counsel, especially given the difficult circumstances under which Mr. Curry worked.
Moreover, Petitioner has failed to establish that he was prejudiced by his trial counsel's decision not to present this mitigating evidence. In addition to the facts of the instant case, which establish that Petitioner entered a house and shot two unarmed people multiple times with a shotgun, the State presented evidence at the punishment phase of the trial that Petitioner had three prior felony convictions, two for selling marijuana and one for assault. (SOF 34:State's Exhibit#52). The victim of the assault testified that in 1971 Petitioner and his friends kidnaped him, and Petitioner gave him a concussion by beating him with a stick and then threatened to rape and kill him. (SOF 34:13-9). The State further presented evidence that in 1987 Petitioner assaulted a young man who was working at a Sonic restaurant and that in 1994 Petitioner attacked a man with a beer bottle, causing injuries to the head and face which required 380 stitches to repair. (SOF 34:22-35, 37-43). And, the State presented evidence of Petitioner's disciplinary problems while in the county jail awaiting trial. (SOF 34:81-5, 105-9, 113-35, 163-78), Given Petitioner's history of violence, including recent acts of violence, as well as the brutal facts of the murders, Petitioner has failed to establish any reasonable probability that Petitioner would not have received the death penalty had his sister and brother-in-law testified about his good qualities and home videos and unspecified mental health records were shown to the jury.
Victim Character Evidence Claim
Tammy Brown was the last witness who testified for the State at the punishment phase of the trial. Among other things, she testified that she was close with the victims, that her mother loved and supported all of her family and would help Tammy with her children, that both victims would help a lot of people, and that her brother loved his children. (Statement of Facts, Vol. 35, pp. 231-3). Petitioner contends that this testimony was inadmissible victim character evidence.
In Payne v. Tennessee, 501 U.S. 808 (1991), the United States Supreme Court held that the Eighth Amendment did not prohibit the admission of victim impact evidence at the sentencing stage of a capital murder trial, and the Court thus overruled its previous case law on this subject. Id. at 827, Instead, the Court held that a state may "legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed." Id. at 825. The Supreme Court, however, also stated that the Due Process Clause of the Fourteenth Amendment still prohibits the introduction of evidence that is "so unduly prejudicial that it renders the trial fundamentally unfair." Payne, 501 U.S. at 825. Ms. Brown gave testimony about the victims and their relationship with the family. Thus, whether Ms. Brown's testimony is, as Petitioner claims, victim character evidence, or victim impact evidence under this definition set out in Payne, under Payne such evidence is admissible at the punishment phase of a criminal trial unless it is evidence that is so prejudicial that it renders the trial unfair.
In cannot be said, however, that this testimony by Ms. Brown was so prejudicial that it rendered Petitioner's trial unfair. Rather, Ms. Brown's testimony was precisely the type of evidence the victims and the effect of their death on others that the Supreme Court in Payne ruled was constitutional. And, in fact, the Supreme Court specifically stated that one of the purposes in admitting this type of evidence was so that the State may remind the jury about the value of the victim and the fact that the death of this individual represents a unique loss to society. Id. at 825-6.
As support for his argument, Petitioner cites Smith v. State, 919 S.W.2d 96 (Tex, Crim. App. 1996), a case in which the Court of Criminal Appeals differentiated between victim impact evidence and victim character evidence and ruled that victim character evidence was inadmissible at criminal trials. Subsequent to this decision, the Court of Criminal Appeals, citing Payne, held that there was no distinction between the two types of evidence and that both are admissible at the punishment phase of criminal trials. Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998), cert. denied, 119 S.Ct. 1466 (1999). Neither the Supreme Court nor the Fifth Circuit, however, has ever explicitly recognized any difference between victim character evidence and victim impact testimony. See Felder v. Johnson, 108 F.3d 206, 215-6(5th Cir.), cert. denied, 528 U.S. 1067 (1999). Accordingly, because this testimony was, in fact, admissible, trial counsel was not ineffective under the Strickland standard for failing to make a futile objection to it.
The state habeas court concluded that Petitioner's ineffective assistance of counsel claim was without merit. (State Habeas Conclusion #26). This conclusion did not result in a decision that was contrary to the Strickland standard. Petitioner's first ground for relief is denied.
C.
In his second ground for relief, Petitioner argues that the trial court violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution by prohibiting him from informing potential jurors during the voir dire process about his parole eligibility if given a life sentence. Prior to trial, Petitioner's trial counsel filed a document entitled "Defendant's Request to Voir Dire Potential Jurors on the Applicability of Parole to Capital Murder," in which he requested that he be allowed to inform the jury that Petitioner was forty-eight years old when the offense was committed and that, if given a life sentence, he would not be eligible for parole for forty years. (Tr:111-3); see also TEX. CODE CRIM. PROC. ANN. art. 42, 18 § 8(b) (Vernon Supp. 1995), repealed by TEX. GOV'T CODE ANN. § 506, 145(b) (Vemon 1998)). This motion was denied by the trial court. (SOF 9:12).
On direct appeal to the Court of Criminal Appeals, Petitioner argued that the trial court violated his Fourteenth Amendment right to due process of law when it denied this motion. The Court of Criminal Appeals overruled this point of error, holding that, pursuant to its extensive case law on the subject, parole is not a proper subject for voir dire in a capital murder case. Collier, 959 S.W.2d at 623. Likewise, the state habeas court concluded that this issue was without merit. (State Habeas Conclusions #1, 4). In making this claim on direct appeal and at the state habeas level, as well as in his federal petition, Petitioner continues to rely on the Supreme Court case Simmons v. South Carolina, 512 U.S. 154 (1994). Simmons is a death penalty case in which a plurality of the Supreme Court held that, where a defendant's future dangerousness is an issue in a capital case and the sentencing options are death or life without the possibility of parole, due process allows the defendant to inform the sentencing jury about his parole ineligibility. Id. at 156. Petitioner argues that Simmons is applicable to his case because, had he received a life sentence, he would not have been eligible for parole for forty years, a time period Petitioner asserts is comparable to a life sentence without parole, especially given the fact that he was forty-eight years old at the time he committed the offense.
Contrary to Petitioner's argument, however, the plurality opinion in Simmons specifically limited its holding to cases where the sentencing option is between death and life without parole.
Justice Blackmun, writing for the Court, went further and stated that "[i]n a State in which, parole is available, how the jury's knowledge of parole availability will affect the decision whether or not to impose the death penalty is speculative, and we will not lightly second-guess a decision whether or not to inform a jury of information regarding parole." Id. at 168. And the opinion also noted that, differing from South Carolina, Texas has no life-without-parole sentencing option. Id. at 168, n. 8. Moreover, since the Supreme Court's decision in Simmons, the Fifth Circuit has held that a trial court does not violate a Texas capital murder defendant's Eighth Amendment rights or due process rights by refusing to inform the jury regarding parole eligibility because Simmons does not apply in Texas cases, but only in cases where life-without-parole is a sentencing option. Miller v. Johnson, 200 F.3d 274 (5th Cir. 2000); Allridge v. Scott, 41 F.3d 213, 222 (5th Cir. 1994).
Petitioner continues in his argument, however, by contending that he is entitled to relief because the issue of parole was raised by the State during voir dire and during the prosecutor's closing argument at punishment and by a jury instruction given by the trial court and because several jurors considered parole when reaching their respective decisions on punishment. Specifically, Petitioner complains about that fact that the prosecutor asked several prospective jurors whether they would be able to disregard any outside knowledge they may have about parole and not consider it when answering the punishment special issues, the statement that the prosecutor made in his punishment closing statement that Petitioner would be a future danger to society either in or out of prison, and the jury instruction in the punishment jury charge that instructed the jury that it should not consider or discuss any possible actions of the Board of Pardons and Paroles or the governor nor how long Petitioner would be required to serve if given a life sentence. (See SOF 35:260; Tr:277). Finally, Petitioner has submitted an affidavit from an investigator which states that three jurors from Petitioner's jury told the investigator that they considered parole in reaching their individual decisions to vote for the death penalty. (Federal Petition, Appendix D).
In actuality, however, the prosecutor's comments to prospective jurors were made in order to insure that, if chosen as jurors, they could disregard any thoughts of parole. Likewise, the instruction in the jury charge instructed the jury not to consider parole in reaching its decision. As stated earlier, the Fifth Circuit has specifically held that the federal constitution does not require that a Texas jury in a capital murder case be informed about parole eligibility. Thus, the federal constitution is not violated when the same jury is told not to consider parole. As for the prosecutor's statement in his closing statement, this statement was in response to defense counsel's argument that Petitioner would not be a threat to anyone in prison. (SOF 35:247-8, 260). And, with regard to the investigator's affidavit, this hearsay statement does not establish any federal constitutional error. In Monroe v. Collins, 951 F.2d 49, 52-3 (5th Cir. 1992), the Fifth Circuit noted that it is not a violation of the federal constitution for the state to instruct a jury on parole procedures if it so chooses. Therefore, the court held that even comments by jurors during deliberations about parole law did not violate the federal constitution, so long as the comments were accurate comments about parole. Petitioner, at most, has presented evidence that some jurors thought about parole generally, but has presented no evidence that there were any deliberations on the subject, much less that any incorrect information about parole was given to the jury. Without such evidence, it cannot be said that Petitioner's constitutional rights were violated.
In its opinion on direct appeal, the Court of Criminal Appeals held that Simmons is not applicable in Petitioner's case because in Simmons, the only available sentencing option other than the death penalty available to the jury was life-without-parole, which is not a sentence that is available in Texas. Collier, 959 S.W.2d at 623-4. The state habeas court, in denying relief on this issue, found that Petitioner had made no allegation that any discussion of parole had occurred during deliberations and found that there was no evidence that there was a misstatement of the law on parole eligibility, by one professing to know the law, which was relied on by jurors and caused them to change their vote to a harsher punishment. (State Habeas Findings #26, 27). Neither the Court of Criminal Appeal's decision on direct appeal nor the state habeas court's findings were unreasonable applications of federal law,
Moreover, even if Simmons did apply to the instant case, Petitioner's claim would be Teague-barred. In O'Dell v. Netherland, 521 U.S. 151, 153 (1997), the Supreme Court held that the rule announced in Simmons is a new rule as defined in Teague v. Lane, 489 U.S. 288 (1989). The Supreme Court further held that this new rule does not meet the narrow exceptions set forth in Teague and therefore cannot provide a ground for federal habeas relief. See also Clark v. Johnson, 227 F.3d 273 (5th Cir. 2000). Petitioner's second ground for relief is without merit and is denied.
D.
In his third ground for relief, Petitioner contends that he was denied his right to self-representation when the jury panel was not suppressed after Petitioner asserted his right to self-representation in the middle of the voir dire process.
Several days into the voir dire process, Petitioner filed a request to substitute counsel, which was denied, and then a request to proceed pro se which, after a hearing regarding Petitioner's competency to waive counsel and the voluntariness of the waiver, was granted. (Tr:133, 139, 149; SOF 15:923, 964-1053). Petitioner then filed a request to suppress the original voir dire and order additional voir dire. (Tr:147-8). In particular, Petitioner stated on the record that he believed that his appointed counsel had spent too much time questioning potential jurors about their feelings on the possible punishments of life imprisonment or death and not enough time discussing the lesser offenses of murder and manslaughter. Petitioner also did not agree with some "trade-offs" that were made between the State and defense with regard to the excusal of certain jurors. (SOF 16:1073-4). This motion was denied by the trial court (SOF 16:1076).
When Petitioner began representing himself, nineteen potential jurors had been questioned by the parties, seven of which were either excused by the agreement of both parties or were successfully challenged for cause, with the remaining eleven remaining on the panel of potential jurors. After all of the potential jurors were questioned, there were forty-three potential jurors remaining from which the jury would be chosen. (SOF 25:2379). At that time, the trial court stated that, at the suggestion of the State and with the agreement of the defense, the parties would be allowed to speak individually with the first eleven members of the panel who were placed there before Petitioner began representing himself. (SOF 25:2379). The parties did, in fact, speak to ten of these eleven jurors individually, the parties agreed to excuse without further questioning Juror Kennedy, who was the first juror on the panel, and two of these ten panel members eventually became jurors in the case. (SOF 25:2381-2412, 2416-7).
When these ten potential jurors were again questioned by the parties, the prosecutor asked each one whether his or her service as a juror would be affected by the fact that Petitioner had chosen to represent himself. Petitioner did not ask any of these panel members about their understanding of possible lesser offenses, but instead asked them whether they had heard anything additional about the case or whether anything had occurred in their lives that would prevent them from being fair jurors.
Petitioner asserts that his constitutional right of self-representation was violated because the trial court did not suppress the original voir dire and begin the voir dire process again. In Faretta v. California, 422 U.S. 806, 807 (1975), the United States Supreme Court held that a criminal defendant has the constitutional right under the Sixth Amendment to represent himself at trial. The Fifth Circuit has also stated, however, that this right of self-representation does not attach until it is asserted. Brawn v. Wainwright, 665 F.2d 607 (5th Cir. 1982) (en banc). The trial court immediately discontinued the voir dire process once Petitioner asserted his right to self-representation. But, because Petitioner did not assert his right until several days of voir dire had already occurred, federal law did not require the trial court to start the trial process all over again.
Nevertheless, the trial court did allow Petitioner the opportunity to question every panel member that had already been questioned by the parties earlier and had not been excused by agreement or for cause. Thus, the only potential jurors Petitioner did not have an opportunity to question on his own were ones who had already been excused. Moreover, Petitioner was allowed the opportunity to exercise his peremptory challenges and did exercise all of his assigned fifteen peremptory challenges and one additional strike to strike a potential alternate juror. (SOF 25:2424-5). While Petitioner has the constitutional right to an impartial jury, Ross v. Oklahoma, 487 U.S. 81, 86 (1988); Irvin v. Dowd, 366 U.S. 717, 722 (1961), Petitioner has failed to show not only how his right to self-representation was denied, but has also failed to show that the fact that he did not question eight potential jurors who were excused before he began representing himself resulted in a jury that was not an impartial one.
When this same claim was made at the state habeas level, the state court found mat granting Petitioner's request to suppress this voir dire and empanel a new venire would have ended the proceedings and been the functional equivalent of a mistrial. (State Habeas Court Findings #30-1). The state court also found mat Petitioner's "Request to Suppress Original Voir Dire" did not contain a request to have these nineteen prospective jurors recalled for additional questioning and that Petitioner had pointed to no question he wished to ask of these jurors. (State Habeas Findings #34-5). The state court then concluded that the denial of Petitioner's request to suppress the original voir dire did not violate the federal constitution and that Petitioner's right to self-representation under the federal constitution was not violated (State Habeas Conclusions #21, 23). This decision by the state habeas court was not an unreasonable application of federal law, and Petitioner's third ground for relief is therefore denied.
E.
In his fourth ground for relief, Petitioner contends that Article 11.071 of the Texas Code of Criminal Procedure is unconstitutional because it requires that a state habeas court application be filed before the direct appeal is final. Under Article 11.071 of the Texas Code of Criminal Procedure, the article which outlines the procedure to be used in state post-conviction attacks upon death sentences, a state habeas applicant is required to file his or her state application for habeas corpus either within 180 days of appointment of state writ counsel by the Court of Criminal Appeals or forty-five days after the State has filed its response in the applicant's case on direct appeal to the Court of Criminal Appeals, whichever is later. An applicant may obtain a ninety-day extension of the deadline upon a showing of good cause. TEX. CODE. CRIM. PROC. ANN. art. 11.071 § 4(a),(b) (Vemon 1995). Petitioner contends that, because this time requirement resulted in his state habeas application being filed before the Court of Criminal Appeals reached its decision on direct appeal, Article 11.071 violated his right to due process under the United States Constitution because he was prevented from raising any grounds for relief, such as ineffective assistance of appellate counsel and/or procedural default on appellate review, that would only become evident after the Court of Criminal Appeals.
First, and most importantly, the opinion on direct appeal in the instant case has now been handed down by the Court of Criminal Appeals, and Petitioner has failed to allege any new ground for relief that has become evident since this opinion was issued that he was unable to raise in his state writ application. Furthermore, Petitioner has failed to explain how, if such a claim did exist, he has been prohibited from raising it since then. Under section five of Article 11.071, an applicant may file a subsequent application for writ of habeas corpus if there is a claim that has not been and could not have been presented in the initial application because the factual or legal basis of the claim was not available at the time. TEX. CODE CRIM. PROC. § 5(a). A factual basis is unavailable at the time of the initial application if it was not ascertainable through the exercise of reasonable diligence, TEX. CODE CRIM. PROC. § 5(e). A plain reading of this section would clearly suggest that the Court of Criminal Appeals' decision on direct appeal, if it were a basis for a claim, would have been a claim for which the factual basis would have been unavailable at the time Petitioner filed his initial state application. Petitioner has not filed a subsequent state application attempting to raise any additional issues, nor does he assert any issues that he would like to raise in a subsequent application, And, other than simply stating that this section concerning subsequent applications would not allow Petitioner to raise a new claim based on the direct appeal decision, Petitioner has presented no evidence to support his claim that the requirement under Article 11.071 that the initial application for writ of habeas corpus be filed, for all intents and purposes, before the direct appeal has been decided has prevented him from raising any cognizable claim that he wanted to at the state level.
Finally, although the specific issue raised by Petitioner has not been addressed by the federal courts, the United States Supreme Court has held that state collateral proceedings are not constitutionally required, and states have no constitutional obligation to provide collateral relief to state criminal defendants. Murray v. Giarrantano, 492 U.S. 1, 10 (1989); Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). The Supreme Court has also stated that the federal constitution does not require states to appoint counsel in state post-conviction proceedings, even in capital cases. Murray v. Giarrantano, 492 at 10. And, because state post-conviction counsel is not constitutionally required, ineffective assistance of state habeas counsel cannot be a basis for habeas relief. Coleman v. Thompson, 501 U.S. 722, 752 (1991). Likewise, because the federal constitution does not require that a state provide a criminal defendant with any state post-conviction collateral proceeding, a claim that the procedure that is provided is constitutionally inadequate cannot be a basis for federal habeas relief. Instead, as the Fifth Circuit has held, a federal habeas petitioner must establish that his conviction is itself constitutionally infirm. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied, 120 S.Ct. 22 (1999). Petitioner has failed to do so with this claim, and his fourth claim for relief is therefore without merit and thus denied.
F.
In his fifth and final ground for relief, Petitioner contends that his due process rights under the federal constitution were violated because the Court of Criminal Appeals refused his request, made during the state habeas process, to have a neuropsychologist appointed to examine him. Evidently, this request was made in order to explore whether or not Petitioner has any organic brain damage.
A petitioner is not entitled to federal habeas relief on a claim that he was denied due process in the state habeas court proceeding because this is an attack on a proceeding collateral to his detention and not the detention itself. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied, 120 S.Ct. 22 (1999); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995). The Fifth Circuit has consistently held that a federal habeas petitioner is not entitled to relief based upon any claim that he was denied his due process rights during the state habeas process, including cases where the petitioners have claimed that they were entitled to relief because there was no evidentiary held, because the state court did not consider affidavits submitted by the petitioner, because the petitioner was not allowed to subpoena witnesses for an evidentiary hearing, or because the state habeas court adopted the State's proposed findings of fact and conclusions of law shortly after they were filed. Trevino, 168F.3d at 1275; McGowin v. Scott, 67 F.3d 100, 102 (5th Cir. 1995); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992), cert. denied, 507 U.S. 1056 (1993); McCoy v. Lynaugh, 874 F.2d 954, 966 (5th Cir. 1989). In all such cases, the Fifth Circuit has held that a claim of an infirmity in the state habeas proceeding does not constitute a ground for relief in federal court. Therefore, Petitioner's claim that he was denied due process by the state habeas court because his request for the appointment of an expert was denied does not entitle him to federal habeas relief. Rather, Petitioner must present evidence that either his conviction or sentence violates the federal constitution based upon evidence of organic brain damage, and this he has not done. Petitioner's fifth ground for relief is without merit and is denied.
IT IS THEREFORE ORDERED that Respondent's motion for summary judgment is hereby GRANTED and the petition for writ of habeas corpus is DENIED.
The Clerk of Court shall transmit a true copy of this Order to Petitioner and to Counsel for Respondent.
SO ORDERED.