* District Judge of the Eastern District of Texas, sitting by designation.

1 The same conduct also resulted in an attempted capital murder indictment and conviction in

Sherman County, Texas. The attempted capital murder conviction was ultimately vacated by the

Texas Court of Criminal Appeals on double jeopardy grounds. United States Court of Appeals,

Fifth Circuit.

No. 91-7196.

J.W. WILLIAMS, Petitioner-Appellant,

v.

James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division,

Respondent-Appellee.

May 4, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before KING and EMILIO M. GARZA, Circuit Judges, and HALL * *, District Judge.

KING, Circu Judge:

Petitioner, J.W. Williams, a prisoner currently serving a life sentence in the custody of the

Texa s Department of Criminal Justice, appeals from the district court's denial of his first federal

habeas corpus petition. Williams raises one issue on appeal: whether the state court's refusal to

appoint a psychiatrist to ass ist in t he preparation of his insanity defense violated his constitutional

right to due process. Because we conclude that it did not, we affirm.

I.

On December 23, 1982, Williams was indicted in Moore County, Texas, on an aggravated

kidnapping charge arising from the abduction, rape, and attempted murder of an eighteen-year-old

girl. 1 Williams pled not guilty. Prior to trial, Williams' appointed attorney notified the trial court that

Williams intended to rely upon the insanity defense. The attorney also filed a written motion stating

that he had reason to believe that Williams "may have been insane at the time the o ffense was

committed" and requesting the appointment of a psychiatrist to examine Williams and to assist in the

preparation of Williams' defense.2 On January 20, 1983, the trial court conducted a pretrial hearing to consider motions filed by

Williams in the Sherman County prosecution, which included a motion for the appointment of a

psychiatrist. At that time, the court heard evidence regarding Williams' request for psychiatric

assistance in that case. On February 10, 1983, the court conducted a pretrial hearing in the

Moore County prosecution, at which time, by agreement of the parties, the court took judicial

notice of the evidence presented during the January 20 hearing.

3 Williams previously had been convicted of forgery, two bank robberies, and escape. Before ruling on the motion, the trial court conducted a hearing at which both Williams and

the State were afforded the opportuni ty to present evidence. 2 At the hearing, Williams testified that

he suffered from periodic hallucinations, flashbacks, and blackouts, which he attributed to his heavy

use of LSD and other drugs after he returned from military service in Vietnam. Williams also

recounted that, on one occasion, his parole officer told him that he had attacked his own father with

a knife. He further testified that, while in federal prison in Texarkana, he saw a psychiatrist twice a

week for "emotional problems" arising from "trouble" with his ex-wife and that he had never been

convicted of a "violent" crime. On cross-examination, however, Williams acknowledged that he had

not asserted insanity as a defense to any of his prior convictions 3 and that, at the time of the offense,

he was enrolled as student in good standing at the University of Arkansas.

Williams also offered as evidence part of a written statement made by his co-defendant,

William Gartrell, in which Gartrell stated that, although Williams initially "seemed to have a sound

mind," on the night of the offense, Gartrell had "star t ed realizing that J.W. Williams was far from

sound mind, but instead as a fact, a homicidal maniac." The State countered with the testimony of

Joe Trammell, a county jailer, who had observed Williams during the period after Williams' arrest and

prior to the hearing. Trammell testified that he had seen nothing that would lead him to believe that

Williams was insane or incompetent. After considering the evidence, the trial court denied Williams'

request for the appointment of a psychiatrist and proceeded with the trial.

At trial, Williams' sole defense was that he was insane when he committed the offense. As

part of its case in chief, the State offered a brief written statement made by Williams several days after

he was arrested, in which he described, in general terms, what he and Gartrell had done on the night

of the offense, and in which Williams assumed "full blame" and responsibility for the crime. Testifying4 Williams v. State, No. 2-84-151-CR (Tex.App.—Fort Worth, Aug. 16, 1984, no pet.) (not

designated for publication). on his own behalf, Williams stated that he suffered from some type of mental defect that caused him

to experience periodic hallucinations and blackout s, t hat he could not remember the details of the

offense for which he was charged, and that he did not recall making the written statement. Williams

further testified that, while he was in the federal correctional institution at Texarkana, the blackouts

had been diag no sed as arising from "post-traumatic stress syndrome" related to his service in

Vietnam. On cross-examination, however, Williams admitted that he remembered abducting the girl

at gun-point, driving her out of town, raping her, standing o ver her with the gun in his hand, and

driving away from the scene of the crime.

Williams also called as witnesses, Gartre ll, who t est ified that Williams was not in his right

mind on the night of the offense, and a jail inmate, who testified that Williams had been experiencing

blackouts while he was detained prior to trial. As rebuttal witnesses, the State cal l ed the county

sheriff and the county judge. Both officials testified that Williams appeared coherent and competent

in all respects when he was arraigned four days after the offense.

At the close of the evidence, the jury was instructed concerning the insanity defense. They

returned a guilty verdict and sentenced Williams to life imprisonment. Williams appealed to the Texas

Court of Appeals, which affirmed his conviction on August 16, 1984. 4 He did not file a petition for

discretionary review with the Texas Court of Criminal Appeals.

On February 29, 1988, Williams filed a state habeas petition, which was denied by the Texas

Court of Criminal Appeals without written order. Williams thereafter filed this federal habeas corpus

proceeding in the district court. His petition asserted two grounds for relief: (1) that the state court

denied his right to due process and to the effective assistanc e o f co unsel by refusing to appoint a

psychiatrist to assist in the preparation and presentation of his insanity defense, and (2) that the state

court denied his right to due process by failing to submit requested jury instructions regarding

evidence of criminal conduct extraneous to the charged offense.

The district court referred the matter to a magistrate, who recommended denying relief. The5 Although Williams asserted two grounds for relief in his habeas petition, neither his motion to

proceed in forma pauperis on appeal nor his brief to this court addresses the evidentiary issue

presented in the petition. By not briefing the issue, Williams has waived his right to raise it before

this court. See Volson v. Blackburn, 794 F.2d 173, 175 (5th Cir.1986).

6 488 F.2d 1154 (5th Cir.1974).

7 Edwards involved an appeal from the judgment of a federal district court. The appellant

argued that the trial court had erred in denying him the psychiatric assistance authorized by 18

U.S.C. § 3006A(e). 488 F.2d at 1160. This court found that the trial court had expressly granted

the appellant's request and appointed an expert but that appellant's counsel had failed to pursue

the matter when it became clear that the expert was reporting to the court rather than to the

appellant. Id. at 1164. We concluded that appellant's counsel had not rendered "reasonably

effective assistance" and remanded the action for a new trial. Id. at 1165. Edwards is therefore

factually distinguishable from the instant case: Williams' claim does not arise under § 3006A(e)

and he has not alleged that his attorney failed to pursue the appointment of a psychiatrist.

Moreover, because Edwards is a pre- Strickland ineffectiveness case, it has only limited

precedential value. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). district court adopted the magistrate's recommendation and dismiss ed Williams' petition without

conducting an evidentiary hearing. Williams timely appealed, and this court grant ed Williams'

application for a certificate of probable cause.

II.

On appeal, Williams challenges only the district court's conclusion that he was not denied due

process or the effective assistance o f co unsel as a result of the state courts' refusal to appoint a

psychiatrist. 5 Relying primarily upon U nited States v. Edwards, 6 Williams argues that he was denied

the effective assistance of counsel because "he was denied any kind of psychiatric assistance although

his trial counsel properly and t imely requested su ch assist ance." According to Williams, the state

court denied his request, "even though there was ample evidence of [his] prior mental problems."

Although his reliance on Edwards is misplaced, 7 Williams' argument does find support in Ake

v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). There, the Supreme Court held

that "when a defendant has made a preliminary showing that his sanity at the time of the offense is

likely t o be a significant factor at trial, the Constitution requires that a State provide access to a

psychiatrist's assistance on this issue if the defendant cannot otherwise afford one." 470 U.S. at 74,

105 S.Ct. at 1091-92. The State's failure to provide such assistance, the Court concluded, constitutes8 The Court expressly stated that because the Due Process Clause guaranteed Ake the

assistance he requested, it did not need to address the applicability of the Sixth Amendment.

9 Although Ake was decided after Williams' conviction became final, the Respondent has not

raised the issue of Ake 's retroactivity under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103

L.Ed.2d 334 (1989). To date, only one circuit court has directly addressed this issue. See

Bassette v. Thompson, 915 F.2d 932, 938 (4th Cir.1990) (" Ake announces a new rule which is not

to be applied retroactively."), cert. denied, --- U.S. ----, 111 S.Ct. 1639, 113 L.Ed.2d 734 (1991).

The Ninth Circuit has held that a similar rule permitting collateral review of the competence of

defense psychiatrists could not be applied retroactively under Teague. See Harris v. Vasquez, 949

F.2d 1497, 1519 (9th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 1275, 117 L.Ed.2d 501

(1992). In dissent, Judge Noonan argued that both Ake and the rule at issue fell within the

fundamental fairness exception to the Teague rule. See id. at 1529-39 (Noonan, J., concurring in

part and dissenting in part). We need not decide this issue, however, because the Teague rule is

not "jurisdictional," in the sense that we must raise and decide the issue sua sponte. Collins v.

Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990). We therefore leave

the retroactivity question for another day and address the merits of Williams' Ake claim.

10 In Volanty v. Lynaugh, 874 F.2d 243 (5th Cir.), cert. denied, 493 U.S. 955, 110 S.Ct. 369,

107 L.Ed.2d 355 (1989), we noted that, in evaluating an Ake claim, we should look only to the

evidence before the trial judge at the time he ruled on the request for psychiatric assistance. Id. at 247 n. 7 (citing Messer v. Kemp, 831 F.2d 946 (11th Cir.1987) (en banc), cert. denied, 485 U.S.

1029, 108 S.Ct. 1586, 99 L.Ed.2d 902 (1988)). Such a rule clearly finds support in both the

analysis and language of Ake. Nevertheless, at least one circuit has employed a broader inquiry, at

least in the case of pre- Ake convictions: "In cases such as this, in which the trial court denied a

criminal defendant court-appointed psychiatric assistance prior to the Supreme Court's

determination in Ake, but to which Ake 's standard applies, the question presented is whether,

"upon review of the entire record, [petitioner] could have made a threshold showing under Ake

"that his sanity at the time of the offense is to be a significant factor at trial ...." ' " Liles v. Saffle,

945 F.2d 333, 336 (10th Cir.1991) (quoting Cartw right v. Maynard, 802 F.2d 1203, 1212 (10th

Cir.1986)), cert. denied, --- U.S. ----, 112 S.Ct. 956, 117 L.Ed.2d 123 (1992). As was the case

in Volanty, however, our resolution of this case does not depend upon which of these competing

rules we chose to follow, for even if we look to the entire record, we do not find sufficient

evidence to support Williams' Ake claim. See 874 F.2d at 247 n. 7. a denial of due process. Id. at 87, 105 S.Ct. at 1098. 8

The Respondent concedes that, under Ake, an indigent defendant who makes the required

threshold showing is entitled to the assistance of a court-appointed psychiatri st. He contends,

however, that Williams failed to make such a showing. 9 Our task, therefore, is to determine whether

Williams made a preliminary showing that his sanity was likely to be a significant factor at trial. After

a careful review of the record, we conclude that he did not. 10

A.

At the outset, we must consider the question of the quantum of proof necessary to make the

preliminary showing required under Ake. We have previously noted that, "because the facts in Ake11 The record indicated that Ake's behavior at his arraignment was so bizarre that the trial

court, sua sponte, had him examined for competency, that he was initially found to be

incompetent and was later found to be competent only on the condition that he was sedated for

trial, and that the psychiatrist who examined him informed the trial court that Ake's illness might

have begun many years earlier. See Ake, 470 U.S. at 86, 105 S.Ct. at 1098. make the issue of the defendant's sanity so clear, [ 11 ] it is difficult to distill from that case a bright line

test for determining what constitutes a sufficient showing." V olanty v. Lynaugh, 874 F.2d 243, 245

(5th Cir.), cert. denied, 493 U.S. 955, 110 S.Ct. 369, 107 L.Ed.2d 355 (1989 ). Indeed, the A ke

Court specifically refused to express an opinion regarding this issue. S ee 470 U.S. at 86 n. 12, 105

S.Ct. at 1098 n. 12. Instead, the Court merely concluded that the record before it made it clear that

the defendant's sanity was likely to be a significant factor in his defense, and that the trial court had

notice of that fact when the request for a court-appointed psychiatrist was made. I d. at 86, 105 S.Ct.

at 1098.

In Volson v. Blackburn, 794 F.2d 173 (5th Cir.1986), we attempted to define more clearly

the Ake threshold requirement. There, we rejected the argument that a defendant's sanity will always

be a significant factor at trial when the defendant pleads insanity and concluded that " Ake requires

that the defendant, at a m inimum, make allegations supported by a factual showing that the

defendant's sanity is in fact at issue in the case." Id. at 176. Because Volson's attorney had merely

alleged that his client was unable to understand the difference between right and wrong at the time

of the offense, we found that Volson had failed to make the required threshold showing. Id.

We revisited the issue in Volanty. In that case, the defendant made a pretrial motion for the

appoi nt ment o f a psychiatrist which stated that the defendant was severely addicted to heroin and

that, at the time of the commission of the offense, he was temporarily insane due to intoxication from

drug use. 874 F.2d at 246. The defendant presented no evidence with the motion or at the pretrial

hearing to substantiate his allegation; however, he did offer substantial testimony regarding the fact

of his addiction during the sentencing phase of his trial. Id.

Following Volson, we concluded that Volanty's "bare assertion" that his heroin addiction

rendered him temporarily insane at the time of the offense was not sufficient to invoke the protecti on

afforded by Ake. Id. at 247. We observed that there was no evidence in the record "that at the timeof the commission of the crime, Volanty's behavior was erratic or that his heroin habit rendered him

unable to distinguish right from wrong or conform his behavior to the requirements of the law." I d.

Thus, "although Volanty amply demonstrated that he was an addict," at least by t he close of the

sentencing phase of the trial, we held that the fact of his addiction alone was not enough to make his

sanity a significant factor at trial. Id.

Taken together, Volson and Volanty stand for the proposition that neither the bare assertion

that the defendant was insane at the time of the offense, nor evidence of mental problems generally

is sufficient to make the threshold showing required by Ake. Rather, the defendant, at a minimum,

must make a factual showing—must present specific evidence—that his sanity at the time of the

offense is truly at issue. S ee id. at 245; 794 F.2d at 176. Yet neither case fully informs our judgment

regarding the quantum of proof necessary to make the required showing.

We find guidance, however, in Pedrero v. Wainw right, 590 F.2d 1383, 1391 (5th Cir.), cert.

denied, 444 U.S. 943, 100 S.Ct. 299, 62 L.Ed.2d 310 (1979). In Pedrero, a pre- Ake decision, we

acknowledged that a state trial court, in some cases, has a constitutional duty to provide psychiatric

assistance to an ind igent defendant, but we held that such a duty arises only in cases where the

defendant's sanity "is seriously in issue"—where the trial court has "reasonable ground to doubt" the

defendant's sanity at the time of the offense. Id. Today, we reaffirm this standard in the context of

claims brought under Ake. We hold, therefore, that a defendant satisfies the threshold requirement

of Ake only when he has made a factual showing sufficient to give the trial court reasonable ground

to doubt his sanity at the time of the offense.

We note that the standard we adopt today is consonant with the standard employed by two

other circuits to evaluate claims brought under Ake. The Eleventh Circuit has stated:

[A] defendant must demonstrate something more than a mere possibility of assistance from

the requested expert; due process does not require the government automatically to provide

indige nt defendants with expert assistance upon demand. Rather, a fair reading of these

prec edent s is that a defendant must show the trial court that there exists a reasonable

probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.

Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.) (en banc), cert. denied, 481 U.S. 1054, 107 S.Ct.

2192, 95 L.Ed.2d 847 (1987) (footnotes omitted). The Eighth Circuit employs a virtually identical12 Other circuit courts have articulated varying standards for determining what constitutes a

showing sufficient to reach the Ake threshold. The Tenth Circuit, for example, has stated that

"[i]n order for a defendant's mental state to become a substantial threshold issue, the showing

must be clear and genuine, one that constitutes a "close' question which may well be decided one

way or another. It must be one that is fairly debatable or in doubt." Cartw right v. Maynard, 802

F.2d 1203, 1211 (10th Cir.1986), rev'd on other grounds, 822 F.2d 1477 (10th Cir.1987) (en

banc), affirmed, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); see also Liles v. Saffle,

945 F.2d 333, 336 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 956, 117 L.Ed.2d 123

(1992). We note, however, that while at least the first sentence of the Tenth Circuit's standard

appears on its face to be quite stringent, it has been less harsh in application than one would

imagine. See Dunn v. Roberts, 963 F.2d 308, 313 (10th Cir.1992) (upholding the district court's

grant of a new trial on Ake grounds where the trial court was "made aware in general terms" of

evidence bearing on the petitioner's battered woman's syndrome defense, and where the

petitioner's counsel "explained clearly" that the State's case and the petitioner's defense rested on

the element of specific intent and that the petitioner "could not develop an effective rebuttal"

without the assistance of an expert). We further note that the Ake Court expressly acknowledged

that one of the critical functions of a psychiatric expert is "to help determine whether the insanity

defense is viable ...." 470 U.S. at 82, 105 S.Ct. at 1096 (emphasis added). standard. See Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir.1987) (en banc) ("[A] defendant

must show more than a mere possibility of assistance from an exp ert . Rather, the defendant must

demonstrate a reasonable probability that the requested expert would aid in his defense, and that the

denial of expert assistance would result in an unfair trial."), cert. denied, 487 U.S. 1210, 108 S.Ct.

2857, 101 L.Ed.2d 894 (1988). 12 We believe that a defendant who makes a factual showing sufficient

to give the trial court reasonab le ground to doubt his sanity at the time of the offense has

demonstrated a "reasonable probability" both that the requested expert would be of assistance in the

defense, and that the denial of such assistance would result in an unfair trial. We further note that

such a standard provides adequate assurance that indigen t defendants have access to "the raw

materials integral to the building of an effective defense." Ake, 470 U.S. at 77, 105 S.Ct. at 1093.

B.

We next consider whether Williams presented sufficient specific evidence before the trial

court to give that court reason to doubt his sanity at the time of the offense. At the pretrial hearing,

Williams testified in general terms about periodic hallucinations, flashbacks, and blackouts, which he

attributed to his heavy use of LSD and other drugs. He also testified that he had seen a psychiatrist

while in federal prison for "emotional problems" and that he had once attacked his father with a knife.

Williams failed, however, specifically to raise the issue of his mental state at the time of the offense.13 Williams argues that because the trial court submitted a jury instruction regarding the insanity

defense, "it must be presumed that the court found the evidence supporting such charge to be

competent." The Texas Penal Code requires a court to submit the charge whenever "evidence is

admitted supporting the defense." T EX .P ENAL C ODE A NN . § 2.04(c) (Vernon 1974). Because

Williams offered testimony regarding his insanity defense, the trial court correctly instructed the

jury regarding the defense. It does not necessarily follow, however, that the evidence presented

was sufficient to give the trial court reason to doubt Williams' sanity at the time of the offense.

Indeed, we conclude that it was not. Indeed, the only evidence offered by Williams at the pretrial hearing regarding this critical issue was

Gartrell's "homicidal maniac" comment, which is easily di smissed. Moreover, the State's rebuttal

evidence included the testimony of a third party who had observed Williams for an extended period

of time shortly after the offense. The evidence adduced at the pretrial hearing, therefore, clearly was

not sufficient to give the trial court reason to doubt Williams' sanity at the time of the offense.

At trial, Williams offered additional testimony about the blackouts he allegedly had been

experiencing—that they had been diagnosed as arising from "post-traumatic stress syndrome" related

to his service in Vietnam. He also testified that he could not remember committing the crime for

which he was charged. Although he never expressly said so, the basis of his defense was apparently

that he experienced such a blackout on the night of the offense. Thus, unlike the defendants in V olson

and Volanty, Williams offered at least some testimony regarding his mental state at the time of the

offense.

On cross-examination, however, Williams admitted that he remembered abducting the girl at

gun-point, driving her out of town, raping her, standing over her with the gun in his hand, and driving

away from the scene of the crime. Therefo re, even if we credit Williams' testimony that he

experienced periodic blackouts, due to "post-traumatic stress syndrome," his own testimony belies

the conclusion that he was experiencing such an episode at the time the of fense was committed.

Consequently, although Williams did present some evidence during trial regarding his mental state

at the time of the offense, we cannot say that the evidence presented was sufficient to give the trial

court reason to doubt his sanity at that critical time. 13

III.

In sum, we conclude that Williams failed to make a factual showing sufficient to give the trialcourt reason to doubt his sanity at the time of the offense. Thus, because Williams failed to make the

preliminary showing required by Ake, the trial courts' refusal to appoint a psychiatrist to assist in the

preparation of his insanity defense did not violate Williams' constitutional right to due process. We

therefore AFFIRM the district court's denial of relief.