UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-40512

JOSEPH STANLEY FAULDER

Petitioner-Appellant

VERSUS

WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION

Respondent-Appellee

Appeal from the United States District Court

For the Eastern District of Texas

( )

Before JONES, DUHÉ and WIENER, Circuit Judges.

DUHÉ, Circuit Judge:

Petitioner appeals from denial of his petition for writ of

habeas corpus seeking relief from his death sentence. We affirm.

Petitioner, Joseph Stanley Faulder, is a Canadian citizen who

was twice convicted and sentenced to death for the murder of Inez

Phillips, an elderly widow, during the armed robbery of her home.

The first conviction was reversed by the Texas Court of Criminal

Appeals becau s e Faulder’s confession, which was admitted into2

evidence, was obtained in violation of the Fifth Amendment.

Faulder v. State

, 611 S.W.2d 630 (Tex. Crim. App. 1979) cert.

denied 449 U.S. 874 (1980). The second conviction was obtained

with testimony from Faulder’s accomplice, Lynda McCann, who did not

testify at the first trial. Because no physical evidence connects

Faulder to the murder, McCann’s testimony was critical.

After unsuccessful direct appeals, Faulder filed a petition

f or habeas corpus and a motion for stay of executio n in state

court. The court held an evidentiary hearing on Faulder’s

ineffective assistance of counsel claim and recommended that relief

be denied. The Court of Criminal Appeals denied Faulder’s petition.

Faulder now seeks relief from the federal courts. He filed a

petition for writ of habeas corpus and motion for stay of

execution. Th e district court granted the stay of execution and

held an evidentiary hearing on the use of special prosecutors and

whether the prosecution allowed McCann to testify falsely. After

the hearing, the court denied Faulder’s petition but granted a

certificate of probable cause to appeal. Faulder claims he is

entitled to relief because: (1) the use of special prosecutors

violated the Eighth and Fourteenth Amendments, (2) the prosecution

allowed its chief witness, Lynda McCann, to testify falsely in

v iolation of Faulder’s Fifth, Sixth and Fourteenth Amendm ent

rights, (3) Faulder received ineffective assistance of counsel, and

(4) Faulder’s right to compulsory and due process was violated when3

law enforcement officials violated the Vienna Con vention on

Consular Relations.

We review the district court’s findings of fact for clear

error, but review issues of law de novo

. Williams v. Collins , 16

F.3d 626 (5th Cir. 1994). A finding of fact is clearly erroneous

only when the reviewing court, after reviewing the entire evidence,

i s left with the definite and firm conviction that a mistake has

been made. Id.

I. THE USE OF SPECIAL PROSECUTORS

There is no per se constitutional prohibition against the use

of special prosecutors. Powers v. Hauck

, 399 F.2d 322 (5th Cir.

1968). However, the use of special prosecutors raises concerns

that the prosecutor’s loyalty to the person who pays the special

prosecutor may override the interests of society in justice and a

fair trial for the accused. We require, therefore, that the

d istrict attorney retain control of the prosecution, the special

prosecutor not be guilty of conduct prejudicial to the defendant,

and the rights of the defendant be duly observed. Id. at 325.

Faulder argues that the special prosecutors controlled his

prosecution. Control of the prosecution means control of crucial

prosecutorial decisions, such as whether to prosecute, what targets

of prosecution to select, what investigati ve powers to utilize,

what sanctions to seek, plea bargains to strike or immunities to

grant. E ast v. Scott

, 55 F.3d 996 (5th Cir. 1995). Control is not1 Hill was also a special prosecutor in Lynda McCann’s case but

was paid by the County.

4 determined according to a quantitative analysis or a determination

of who was lead counsel at trial. Person v. Miller , 854 F.2d 656

(4th Cir. 1988)(cited with approval in East

, 55 F.3d at 1001). In

fact, “[w]e can conceive of situations in which without ever

relinquishing effective control of the prosecution government

counsel might for tactical reasons give over even more substantial

portions of the actual conduct of trial to particularly skilled or

knowledgeable private counsel.” Person , 854 F.2d at 663.

The special prosecutors in the second trial were Odis Hill,

the former district attorney who prosecuted Faulder at hi s first

trial and Phil Burleson, a former prosecutor and well known

criminal defense attorney. Mr. Hill resigned from his position as

district attorney between Faulder’s first and second trial. After

the new district attorney, Robert Foster, was appointed, Hill

offered to assist in retrying Faulder. Within thirty days of

taking office, Foster faced two other demanding trials and the

deat h of his mother. Considering his professional and personal

demands and the relative inexperience of his remaining staff,

Foster accepted Hill’s offer. Five months later, the victim’s son

agreed to pay fees to Hill’s law firm. 1

After the first conviction was overturned, Burleson was hired

by the victim’s son to determine whether a second prosecution was

possible without the use of Faulder’s confession. Burleson5

retained investigators and a Canadian law firm to aid in rendering

his opinion that a second prosecution could proceed provided McCann

would testify. All of Burleson’s fees and expenses were paid by

the victim’s son.

Foster assigned Jim McCoy, an assistant district attorney with

two years experience, to be his representative. McCoy kept a low

public profile both before and at trial and allowed Hill and

Burleson to take the lead in the proceedings. At the district

court evidentiary hearing, however, Hill testified that he always

understood that the district attorney had the final word and would

maintain control an d management of the case. Hill maintained

contact with Foster and he and Foster were in agreement on

decisions made throughout the case. Burleson worked with Hill and

Hill in turn made the necessary contacts with Foster. Further,

Hill, Burleson and McCoy testified that they made decisions

together, prepared witnesses together, were in agreem ent on most

issues and worked out the differences on all others.

In light of Hill’s pr ior relationship with the district

attorney’s office, the frequent communication between counsel and

clear understanding of the district attorney’s fi nal decisionmaking authority, we agree with the district court ’s conclusion

that the district attorney controlled Faulder’s prosecution.

Faulder claims that Burleson’s investigative activities were

conducted without the involvement or kn owledge of the district

attorney’s office and therefore, he is entitled to relief. This2 The exact point at which Burleson’s role changed from advisor to

t he victim’s son to special prosecutor is unclear. His

investigation, therefore, may not have been part o f his

prosecutorial activities.

6 argument does not merit reversal. First, use of investigative

resources is only one of several prosecutorial decisions which we

must consider in determining control. Second, even if Burleson’s

actions were violative of our standard, the violations were

corrected once Hill began to assist in the prosecution and McCoy

was assigned by Foster. 2 From at least that point on, the district

attorney was in control of the prosecution. See Woods v. Linahan

,

648 F.2d 973 (5th Cir. Unit B June 1981).

Faulder als o contends that the use of special prosecutors

violates the Eighth Amendment and causes arbitrary and capricious

imposition of the death penalty. He reasons that defendants who

kill wealthy victims are more likely to receive the death penalty

because their cases are more vigorously prosecuted by special

prosecutors hired by family and friends of the victim. We find no

merit in Faulder’s argument. To accept this argument would mean

that prosecutions involving speci al prosecutors would be p er se

unconstitutional in direct opposition to the rule of Powers

.

II. Failure to correct false testimony.

Faulder argues that he was denied due process when the

prosecution did not correct McCann’s fals e testimony. At trial,

defense cou nsel asked whether McCann was promised $10,000 to7

$15,000 in return for her testimony. McCann stated, under vigorous

cross examination, that she had not been promised money in return

f or her testimony. She said she expected relocation expenses

although not in the form of cash payment. The government’s

witnesses corroborate McCa n n’s testimony that McCann would be

provided relocation expenses by the victim’s son to protect McCann

from Faulder should he be acquitted.

A stat e denies a criminal defendant due process when it

knowingly us es perjured testimony at trial or allows untrue

testimony to go uncorrected. G iglio v. United States

, 405 U.S. 150

(1972); Napue v. Illinois

, 360 U.S. 264 (1959); Cordova v. Collins

,

953 F.2d 167 (5th Cir. 1992). To obtain relief, the defendant must

show that (1) the testimony was actually false, (2) the state knew

it was false and (3) the testimon y was material. K irkpatrick v.

Whitley

, 992 F.2d 491, 497 (5th Cir. 1993). Faulder has not shown

that McCann’s testimony was actually false.

III. Ineffective assistance of counsel

Faulder maintains that he received ineffective assistance of

counsel because his attorney presented no miti g ating evidence

during the sentencing phase of the trial. Defense counsel

testified that he did not know that presentation of evidence at

sentencing was allowed under T exas procedure even though he was

board certified in criminal law and was a state criminal district

attorney for approximately four years.

T o prevail on an ineffective assistance of counsel claim , a3 C ompare Williams v. Collins

, 16 F.3d 626 (5th Cir. 1994)(failure

to offer mitigating evidence at sentencing phase not deficient if

a result of a strategic choice).

8 defendant must show that (1) counsel’s performance was deficient

and (2) the deficient performance prejudiced the defense.

Strickland v. Washington

, 466 U.S. 668 (1984). The district court

agreed that counsel’s performance was defi cient 3 but that the

performance did not prejudice the defense. To show prejudice, the

defendant must show that it is reasonably likely that the jury

would have reached a different decision abs ent counsel’s

unprofessional errors. Strickland , 466 U.S. at 696.

Faulder argues that the following evi dence could have been

introduced and would have caused the jury to deliver a sentence

other than death:

(1) Defendant sustained brain dam age near his fourth

birthday when his head was split open on both sides

after falling out of a moving car.

(2) Expert testimony that Defendant suffered from

organic brain disorder which impaired his

judgment and impulse control and disqualifies

a diagnosis of sociopathy and that Defendant

suffered from depression and alcoholism.

(3) Prison records from both Canada and the United

States which show that Defendant was a

peaceable prisoner.

(4) T estimony from family and f riends that the

Defendant was a loyal friend, a trusted

employee, the father of two girls and had once

saved the life of an accident victim when he

drove the woman to the hospital in a blizzard.

This evidence, however, is double edged. Despite Faulder’s4 Defense counsel asked Faulder to have his family attend trial to

humanize him before the jury. Faulder argues that had he known

they could testify, he would have changed his mind about not

contacting the family.

9 head injury, he did not exhibit confusion, uncertainty or mental

impairment during the murder. Faulder abandoned his children and

their mother when he left Canada. Faulder had no contact with his

family for th e twenty years prior to trial and at trial, he

instructed his lawyer not to contact his family. 4 The evidence

also indicates that Faulder is intelligent and came from a loving,

supportive family which would make him less sympathetic. And, the

Canadian prison records contain information that despite his mental

abilities, he was unable to keep his behavior u nder control.

Testimony availabl e from Texas authorities would have indicated

that he had a bad reputation.

We are not persuaded that had all thi s evidence been

introduced, a different sentence is a reasonably likely result.

IV. Vienna Convention

The Vienna Convention on Consular Relations requires an

arresting government to notify a foreign national who has been

arrested, imprisoned or taken into custody or detention of his

right to contact his consul. Vienna Convention on Consular

Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77. Canadian

regulations require the Canadian consul to obtain case-related

information if requested by the arrestee to the extent that it

cannot otherwise be obtained by the arrestee. Manual of Consular10

Instructions of the Department of Foreign Affairs and International

Trade of Canada, Volume 11, Chapter 2, Annex D.

Texas admits that the Vienna Convention was violated. After

investigating the allegations, William Zapalac, Assistant Attorney

General of Texas, could find no evidence that Faulder had been

advised of his rights under the Convention. However, the district

court correctly concluded that Faulder or Faulder’s attorney had

access to all of the information that could have been obtained by

t he Canadian government. While we in no way approve of Texas’

failure to contact the Canadian authorities , the evidence that

would have been obtained by the Canadian authorities is merely the

same as or cumulative of evidence defense counsel had or could have

obtained. See United St ates v. Valenzuela-Bernal , 458 U.S. 858

(1982). The violation, therefore, does not merit reversal.

Judgment of the district court AFFIRMED, stay of execution

VACATED.