Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-70045

CHARLES RAY CRAWFORD

Petitioner - Appellant

v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT

OF CORRECTIONS

Respondent - Appellee

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:04-CV-59

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

In 1994, Charles Ray “Chuck” Crawford was sentenced to death for capital

murder. Crawford’s conviction and sentence were affirmed on direct appeal; his

state application for post-conviction relief was denied by the Mississippi

Supreme Court; his federal § 2254 habeas petition was denied by the federal

district court; and his request for a certificate of appealability (COA) was denied

by the district court. He now moves this court for a COA on eighteen separate

United States Court of Appeals

Fifth Circuit

F I L E D

December 2, 2009

Charles R. Fulbruge III

Clerk
No. 08-70045

2

claims. We grant him a COA on one of those claims, deny relief on the

remainder, and remand for further proceedings.

FACTS AND PROCEEDINGS

On the evening of January 29, 1993, twenty-year-old Kristy Ray was

abducted from her parents’ home in Chalybeate, Mississippi. At that time,

Charles Ray Crawford was awaiting a February 2 trial on unrelated charges of

aggravated assault and rape. Earlier on January 29, Crawford’s family had

discovered a ransom note in the attic of the house where Crawford was living.

Concerned that Crawford was planning a kidnapping, the family members

consulted the lawyer representing Crawford on the aggravated assault and rape

charges, William Fortier. Fortier then contacted the police to report the

possibility that a crime was being committed. The following day, Fortier’s law

clerk turned over Crawford’s mental health records, which were in his

possession, to the FBI. 

Within hours of Ray’s disappearance, local, state, and federal authorities

had begun an investigation. On the evening of January 30, approximately

twenty-four hours after Ray’s disappearance was first reported, officers observed

Crawford approach a residence where they were stationed. Crawford was

arrested; he had a shotgun and switchblade knife in his possession.

Subsequently, Mississippi state police officers and FBI agents administered

Miranda warnings and the FBI agents conducted their first of three interviews

with Crawford. During the first interview, the FBI agents learned from

Crawford that Ray was no longer alive. He then agreed to lead the authorities

to Ray’s body. After approximately one hour of walking through the woods, they

found Ray’s body. She had suffered a stab wound to the heart and left lung and

showed signs of anal penetration.

On February 1, Crawford was interviewed for a second time by the FBI

and state highway patrol officers. He was read his Miranda rights and executed
No. 08-70045

3

a written waiver of those rights. During this interview, Crawford described

additional events leading up to Ray’s murder. He recounted a story in which he

suffered two blackouts, one immediately prior to Ray’s abduction and one prior

to her death. According to Crawford, when he awoke from the second blackout,

he knew immediately that Ray was dead. He stated that he then hid her body

and began to make his way out of the woods. 

A third interview was conducted on February 2, in order to help

authorities locate a revolver and knife that Crawford had lost. Crawford told the

interviewers where he had lost the items, which were found together.

Crawford was ultimately charged in a four-count indictment for burglary

of an inhabited dwelling, rape, sexual battery, and capital murder. At his trial,

which began in April 1994, he presented an insanity defense, which included

expert testimony that he suffered from psychogenic amnesia and bipolar

disorder. The jury found Crawford guilty on all four counts. 

Following the presentation of evidence at the sentencing phase, the jury

returned a sentence of death on the capital murder conviction. It specifically

found three aggravating factors: (1) that Crawford was previously convicted of

a felony involving the use or threat of violence; (2) that the offense was

committed during the crime of kidnapping; and (3) that the offense was

especially heinous, atrocious, or cruel. 

The conviction and death sentence were affirmed on direct appeal by the

Mississippi Supreme Court on March 12, 1998. Crawford v. State, 716 So. 2d

1028 (Miss. 1998) [hereinafter Crawford I]. That court denied Crawford’s

petition for post-conviction relief on December 4, 2003. Crawford v. State, 867

So. 2d 196 (Miss. 2003) [hereinafter Crawford II]. He filed an application for a

writ of habeas corpus under 28 U.S.C. § 2254 in the Northern District of

Mississippi on September 27, 2004. The district court denied that application

on September 25, 2008, Crawford v. Epps, 2008 WL 4419347 (N.D. Miss. Sept.
No. 08-70045

4

25, 2008) [hereinafter Crawford III], and a COA was denied on November 25,

2008. Crawford moves this court for a COA of the district court’s denial of his

writ application.

STANDARD OF REVIEW

Before appealing a district court’s denial of habeas relief under § 2254, a

petitioner must obtain a COA. See 28 U.S.C. § 2253(c). This court may issue a

COA only if the petitioner “has made a substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). “A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El

v. Cockrell, 537 U.S. 322, 327 (2003). “[A] claim can be debatable even though

every jurist of reason might agree, after the COA has been granted and the case

has received full consideration, that petitioner will not prevail.” Id. at 338.

Further, in a death penalty case, doubts whether a COA should issue must be

resolved in petitioner’s favor. See Avila v. Quarterman, 560 F.3d 299, 304 (5th

Cir. 2009). 

DISCUSSION

In his motion, Crawford seeks a COA on eighteen separate claims. The

court considers each in turn.

A. Whether Crawford’s statements were obtained in violation of the

Fifth, Sixth, and Fourteenth Amendments

Crawford asserts that he was denied his Sixth Amendment right to

counsel during the interviews conducted by the FBI. He also asserts that his

Sixth Amendment rights were violated by the state’s delay in providing him an

initial appearance. 

In the district court, Crawford argued that his Sixth Amendment right to

have counsel present during the February 1 and February 2 interrogations was
No. 08-70045

 Crawford also argued that his Fifth Amendment right to have counsel present during 1

the January 30 interrogation was violated. The district court held that this claim was barred

because of an independent and adequate state procedural rule and, alternatively, held that the

claim failed on its merits. See Crawford III, 2008 WL 4419347, at *12. In his brief on appeal,

Crawford offers no argument challenging the district court's primary or alternative resolutions

of the claim and therefore shows no entitlement to a COA on the Fifth Amendment claim.

 The state’s response to Crawford in the district court seems to equate the federal right 2

to counsel under the Sixth Amendment with the right to counsel under the Mississippi

Constitution. However, Mississippi law is equivocal on whether this proposition is correct.

Compare Johnson v. State, 631 So. 2d 185, 187-88 (Miss. 1994) (“Under the Mississippi

Constitution, the right to counsel attaches once the proceedings reach the accusatory stage,

which is earlier in the day than does the federal right.” (quotations omitted)), with McGilberry

v. State, 741 So. 2d 894, 904 (Miss. 1999) (“The right to counsel, at both the federal and state

level, attaches at the point in time when the initial appearance . . . ought to have been held.”).

5

violated. He contended that his right to counsel attached on February 1, when 1

an arrest warrant, supported by a general affidavit, issued for capital murder.

He asserted that he was thereafter denied his right to counsel when

interrogations continued without a lawyer present. He further asserted that he

was denied a prompt initial appearance because he was not brought before a

magistrate until February 3, the day after he gave his last statement. The state

argued in the district court that Crawford’s Sixth Amendment right attached

when his initial appearance occurred or ought to have occurred. It further 2

argued that the delay in providing an initial appearance was not unreasonable

under the circumstances.

The district court rejected Crawford’s contention that his Sixth

Amendment right attached upon issuance of the arrest warrant, but made no

finding of when the right did in fact attach. Instead, the court ruled that even

if Crawford’s right to counsel had attached by the time of the February 1 and

February 2 interviews, he had not invoked that right but, to the contrary, had

made a knowing and voluntary waiver of it after being advised of his Miranda

rights. 
No. 08-70045

 The district court made no finding whether the February 3 hearing was sufficiently 3

prompt under federal law. 

6

It is “beyond doubt that the Sixth Amendment right to counsel may be

waived by a defendant, so long as relinquishment of the right is voluntary,

knowing, and intelligent.” Montejo v. Louisiana, 129 S. Ct. 2079, 2085 (2009).

When, as here, a defendant “is read his Miranda rights (which include the right

to have counsel present during interrogation) and agrees to waive those rights,”

such a waiver suffices to waive the Sixth Amendment right to counsel. Id; see

also Patterson v. Illinois, 487 U.S. 285, 296 (1988) (holding that an accused

advised of his Miranda rights “has been sufficiently apprised of the nature of his

Sixth Amendment rights”). 

The district court found Crawford to have waived his right to counsel on

both February 1 and February 2. Crawford III, 2008 WL 4419347, at *13.

Crawford does not attack the district court’s determinations that he never

invoked his right to counsel and that he executed written waivers of that right.

Crawford has not made a substantial showing that his Sixth Amendment right

to counsel was denied.

Crawford also contends that the state’s delay in providing him an initial

appearance led to a deprivation of his Sixth Amendment right to counsel.

Crawford’s claim lacks merit. As mentioned, the law enforcement officials fully

informed Crawford of his right to counsel by giving Miranda warnings prior to

each interview. The Supreme Court has held that such warnings “sufficiently

apprise[]” a defendant “of the consequences of abandoning [his Sixth

Amendment] rights, so that his waiver on this basis will be considered a

knowing and intelligent one.” Patterson, 487 U.S. at 296. Moreover, the district

court found that Crawford confessed his involvement within an hour of his

arrest. It found “no evidence of a causal connection between the asserted delay

and Petitioner’s confession.” Crawford III, 2008 WL 4419347, at *13. “Where 3
No. 08-70045

7

there is no evidence to support a finding that the delay was for the purpose of

obtaining a confession, there is no evidence that the delay had a coercive effect

on the confession, there is no causal connection between the delay and the

confession, and the confession was otherwise voluntarily given . . . the defendant

has not shown prejudice by the delay.” United States v. Mullin, 178 F.3d 334,

342 (5th Cir. 1999) (quotation and alteration omitted) (omission in original). 

The request for COA on this claim is denied. 

B. Whether Crawford’s statements were inadmissible “fruit of the

poisonous tree” because his arrest for Ray’s murder was not

supported by probable cause

Crawford contends that the statements he gave during his interviews with

the FBI, as well as during his psychiatric evaluation, should not have been

admitted at trial because there was no probable cause for his initial arrest. He

did not present this claim to the state courts either on direct appeal or in his

state post-conviction application. His failure to exhaust available remedies at

the state level precludes relief on this claim at the federal level, absent a

showing of cause for the default and actual prejudice. See Martinez v. Johnson,

255 F.3d 229, 238-39 (5th Cir. 2001). Because Crawford offers no argument

demonstrating cause and prejudice for his failure raise the claim in state court,

a COA is denied.

C. Whether Crawford was subjected to a psychiatric evaluation of his

competency to stand trial without the benefit of counsel in

violation of the Sixth Amendment

Pursuant to a state court order dated February 1, 1993, Crawford was

evaluated by psychiatric personnel at the Mississippi State Hospital to

determine whether he was “competent and sane” to proceed to trial on the

unrelated assault and rape charges, which was scheduled for February 2. The

order, which was made part of the assault and rape case’s docket, was approved
No. 08-70045

 Crawford does not challenge the district court’s determination that he was notified 4

of his rights under the Fifth Amendment by the examining psychiatrist, Dr. W. Criss Lott.

See Crawford III, 2008 WL 4419347, at *13.

8

and signed by William Fortier, Crawford’s counsel in that case, as “Attorney for

Defendant.” Although the exact time is not clear from the record, the evaluation

occurred no later than February 2, 1993. 

During Crawford’s murder trial, information contained in the psychiatric

evaluation was apparently used to discredit his insanity defense. The evaluation

stated, under a section headed “Knowledge of the Court”: “[Crawford]

understands that he may be indicted for capital murder in the most recent

alleged offenses and understands how a capital and non-capital trial would

differ.” In the “Knowledge of the Alleged Offenses” section, the report details

Crawford’s reported state of mind prior to and during Ray’s murder. And in the

“Forensic Opinions” section, the evaluation states that Crawford was not

suffering from a mental disorder which prevented him from knowing right from

wrong “at the time of the alleged offenses,” although it is not clear whether these

“offenses” include Ray’s murder.

Crawford argues that he was subjected to a psychiatric evaluation without

the benefit of counsel, in violation of the Sixth Amendment. To the extent 4

Crawford argues that he was entitled to have an attorney present during the

examination, his claim lacks merit. He cites no authority for such a proposition

and, moreover, the Supreme Court has declined to recognize such a right under

the Sixth Amendment. See Estelle v. Smith, 451 U.S. 454, 470 n.14 (1981)

[hereinafter Smith]; United States v. Byers, 740 F.2d 1104, 1119 & n.16 (D.C.

Cir. 1984) (noting the Supreme Court’s disavowal of any Sixth Amendment right

to have counsel present during a psychiatric examination). 

To the extent Crawford argues that he should have had the benefit of

counsel in deciding whether to undergo a psychiatric evaluation, however, his
No. 08-70045

Buchanan v. Kentucky, 483 U.S. 402 (1987). 5

9

claim is colorable. Fortier, Crawford’s counsel on the unrelated rape and assault

charges, approved the examination. In light of the fact that Crawford’s rape and

assault counsel approved the examination, that Crawford was advised of his

Miranda rights by the examining physicians, and that he presented an insanity

defense in the rape and assault trial, the use of the evaluation during that trial

would not have offended Crawford’s Fifth or Sixth Amendment rights.

Crawford’s contention, however, is that the psychiatric evaluation, ostensibly

performed for the purpose of determining competency in the rape trial, was

improperly used against him in the murder trial. 

A series of Supreme Court decisions, dating from Smith to Penry v.

Johnson, 532 U.S. 782 (2001), provides guidance in this area. As a starting

point, in Smith, the Court held that a defendant has a Sixth Amendment right

to counsel’s assistance “in making the significant decision of whether to submit

to the [psychiatric] examination and to what end the psychiatrist’s findings could

be employed.” 451 U.S. at 470-71; id. at 471 (“[A] defendant should not be forced

to resolve such an important issue without ‘the guiding hand of counsel.’”

(quoting Powell v. Alabama, 287 U.S. 45, 69 (1932))). In 2004, the Third Circuit

provided this concise summary of the law:

A compelled psychiatric interview implicates Fifth and

Sixth Amendment rights ( Smith ). Before submitting

to that examination, the defendant must receive

Miranda warnings and (once the Sixth Amendment

attaches) counsel must be notified ( Smith ). The

warnings must advise the defendant of the

“consequences of foregoing” his right to remain silent

( Smith ). The Fifth and Sixth Amendments do not

necessarily attach, however, when the defendant

himself initiates the psychiatric examination

( Buchanan, Penry ). Similarly, the Fifth — but not 5

Sixth — Amendment right can be waived when the
No. 08-70045

Powell v. Texas, 492 U.S. 680 (1989). 6

10

defendant initiates a trial defense of mental incapacity

or disturbance, even though the defendant had not been

given Miranda warnings ( Buchanan, Powell ). But 6

that waiver is not limitless; it only allows the

prosecution to use the interview to provide rebuttal to

the psychiatric defense ( Buchanan, Powell ). Finally,

the state has no obligation to warn about possible uses

of the interview that cannot be foreseen because of

future events, such as uncommitted crimes ( Penry ).

Gibbs v. Frank, 387 F.3d 268, 274 (3d Cir. 2004). 

In Penry v. Johnson, the defendant Penry committed a capital crime in

1979. Previously, in 1977, a psychiatric evaluation of Penry had been prepared

for an unrelated case. 532 U.S. at 786, 793. That 1977 report was admitted into

evidence in the capital trial. Penry argued that its use infringed his Fifth

Amendment right against self-incrimination. Id. at 793. Although it decided the

question against Penry on AEDPA standard-of-review grounds without reaching

the merits of his Fifth Amendment claim, the Court noted, inter alia, that the

defendant had affirmatively put his mental state at issue and that the 1979

crime had not been committed when the 1977 examination took place. Id. at

794. The Court observed that “[t]he differences between this case and [Smith]

are substantial.” Id. at 795. 

Although the Penry Court viewed the issue through a Fifth Amendment

rather than Sixth Amendment lens, its reasoning is instructive in this case.

Here, Crawford was without a lawyer in the murder case and thus had no legal

counsel to advise him about whether to submit to the examination, which could

have prejudiced (and allegedly did prejudice) his murder defense. Unlike Penry,

Crawford had already committed the Ray murder and intended to present an

insanity defense in the assault trial. It was therefore foreseeable that his
No. 08-70045

11

mental state could be placed at issue during any ensuing capital murder trial.

Under Smith, Crawford may have had a right to a lawyer’s advice “in making

the significant decision of whether to submit to the examination and to what end

the psychiatrist’s findings could be employed.” Smith, 451 U.S. at 471 (emphasis

added). 

The Mississippi Supreme Court, on collateral review, concluded that “it is

apparent that [Fortier], at the very least, had notice of the fact that the

examination would take place as he signed off on the examination order.” 867

So. 2d at 205. The district court similarly concluded that “the court’s order

notified Mr. Fortier of the purpose and scope of the examination sufficient to

satisfy the Sixth Amendment.” 2008 WL 4419347, at *13. Fortier’s approval

likely satisfied any Sixth Amendment concerns in the rape and assault case, but

whether it afforded Crawford adequate protection in the murder case is a

distinct inquiry that should be treated separately. This court concludes that

“jurists of reason could disagree with the district court’s resolution of [this]

constitutional claim[]” and grants a COA. Miller-El, 537 U.S. at 327.

Although the district court touched upon the merits of this claim, the

present state of the record counsels in favor of remanding to that court for

further consideration after additional briefing. The relevance of Fortier’s

participation to Crawford’s Sixth Amendment claim was not adequately briefed.

Further, the effect of Crawford’s waiver of his Sixth Amendment right to

counsel, discussed supra, and whether that waiver would extend to any decision

to submit to a psychiatric evaluation were issues not adequately explored by the

briefs. Should the district court be so inclined, it may develop the record on the

timing of Crawford’s representation in the two criminal proceedings; it may also

conduct an evidentiary hearing to assist its resolution of this claim. See, e.g.,

United States v. Herrera, 412 F.3d 577, 582 (5th Cir. 2005).
No. 08-70045

 The Mississippi rules have since been amended to exempt only those disclosures 7

believed necessary to prevent “reasonably certain death or substantial bodily harm.” MISS.

RULES OF PROF’L CONDUCT 1.6(b)(1) (2009).

12

D. Whether Crawford's statements were obtained through the use of

confidential medical records that were procured without a

warrant or consent

The day prior to Crawford’s arrest, FBI Agent Newsom Summerlin

obtained his mental health records from William Fortier’s law clerk, without

Crawford’s consent. These documents, which were not made part of the record

in the state court or the district court, appear to have been evaluations prepared

in anticipation of Crawford’s rape trial. Crawford contends that law

enforcement officials unlawfully obtained these records and used the information

they contained to extract a confession. He argues that the confession, which was

admitted at trial, was inadmissible “fruit of the poisonous tree.” See Wong Sun

v. United States, 371 U.S. 471, 487-88 (1963). 

Crawford is unable to show any illegality in the release of the records to

the FBI. He asserts that their disclosure was a violation of the attorney-client

privilege. However, both the state court and the district court found that the

records were disclosed in an attempt to prevent the commission of a crime,

which, in 1993, was an exception to the attorney-client privilege. See MISS.

7

RULES OF PROF’L CONDUCT 1.6(b)(1) (1993). Moreover, neither court had the

mental health records before it to make the determination whether the records

were privileged in the first instance. Thus, neither court found that a violation

of the Mississippi evidence rules had occurred. 

Further, even if they were illegally obtained, the causal connection

between the records and the confession is weak. The confession must be

excluded only if, “granting establishment of the primary illegality, the evidence

to which instant objection is made has been come at by exploitation of that
No. 08-70045

 During trial, Pannell was assisted by David Bell.

8

13

illegality or instead by means sufficiently distinguishable to be purged of the

primary taint.” Wong Sun, 371 U.S. at 488 (quotation omitted). Crawford

merely alleges that his interlocutor, FBI Agent Joe Jackson, had read the

records and consulted with a behavioral science expert prior to the arrest. This

is an insufficient causal connection to justify the exclusion urged. A COA on this

claim is denied.

E. Whether the trial court denied Crawford his Sixth Amendment

right to an impartial jury by sustaining objections to questioning

during voir dire

During voir dire at Crawford’s murder trial, the trial judge sustained the

state’s objections to certain questions by James Pannell, Crawford’s counsel,8

which sought to elicit prospective jurors’ views on the death penalty under

particular circumstances. Pannell was prevented from obtaining jurors’ views

on whether the death penalty ought to be automatic if a crime was committed

during a kidnapping or a sexual assault and whether they would consider

specific mitigating factors. Pannell was, however, permitted to ask, “Is there

any one here that believes that the death penalty ought to be automatic of [sic]

someone is found guilty of capital murder.” Crawford argues that his due

process rights were violated under Morgan v. Illinois, 504 U.S. 719 (1992), which

held that a capital defendant “must be permitted on voir dire to ascertain

whether his prospective jurors” would “impose death regardless of the facts and

circumstances of conviction.” Id. at 735-36. 

“This circuit has previously stated that Morgan only involves the narrow

question of whether, in a capital case, jurors must be asked whether they would

automatically impose the death penalty upon conviction of the defendant.”

Trevino v. Johnson, 168 F.3d 173, 183 (5th Cir. 1999) (quotation omitted).
No. 08-70045

14

Crawford concedes that this question (automatic death) was posed to the venire

by his counsel. Moreover, the trial judge also posed this question to the venire

and two jurors were removed for cause based on their affirmative responses.

Further, the trial judge asked the venire whether they would consider any

mitigating evidence against imposition of the death penalty. The trial judge

sustained the state’s objection to Pannell’s attempt to elicit jurors’ views on

specific mitigating factors. The Trevino court considered a similar claim

regarding questioning on a specific mitigating factor and ruled that Morgan in

no way requires the trial court to permit such questioning. 168 F.3d at 183. 

On direct appeal, the Mississippi Supreme Court ruled that “the trial

judge conducted sufficient questioning, and combined with the individual

examination of jurors, voir dire of the venire was sufficient as to whether anyone

would automatically vote to impose death.” Crawford I, 716 So. 2d at 1043. The

district court agreed and denied relief on this claim. Crawford has not made the

requisite showing of a denial of a constitutional right, and his request for a COA

on this claim is denied.

F. Whether the “especially heinous, atrocious or cruel” jury

instruction was unconstitutionally vague

Following the guilty verdict, the trial entered the sentencing phase. In

deciding whether to impose the death penalty, Crawford’s jury was instructed

to consider the potential existence of three aggravating factors. The third of

these was that “[t]he capital offense was especially heinous, atrocious or cruel.”

This factor was further defined as follows:

The court instructs the jury that in considering

whether the capital offense was especially heinous,

atrocious or cruel; heinous means extremely wicked or

shockingly evil; atrocious means outrageously wicked

and vile; and cruel means designed to inflict a high

degree of pain with indifference to or even enjoyment of

the suffering of others.
No. 08-70045

15

An especially heinous, atrocious or cruel capital

offense is one accompanied by such additional acts as to

set the crime apart from the norm of capital murders —

the conscienceless or pitiless crime which is

unnecessarily torturous to the victim.

If you find from the evidence beyond a reasonable

doubt that the defendant utilized a method of killing

which caused serious mutilation, that there was

dismemberment of the body prior to death, that the

defendant inflicted physical or mental pain before

death, that there was mental torture and aggravation

before death, or that a lingering or torturous death was

suffered by the victim, then you may find this

aggravating circumstance.

Crawford argues that this instruction failed to adequately narrow the kinds of

killings which may warrant the death penalty. He contends that Maynard v.

Cartwright, 486 U.S. 356 (1988), and Shell v. Mississippi, 498 U.S. 1 (1990) (per

curiam), invalidated similar instructions and that accordingly his death sentence

should be reversed.

The district court noted that multiple Supreme Court decisions had

approved language similar to that employed in the instruction given. In Profitt

v. Florida, for instance, the Court considered a narrowing construction of the

same aggravating factor, which limited its application to “the conscienceless or

pitiless crime which is unnecessarily torturous to the victim.” 428 U.S. 242, 255

(1976) (quotation omitted). The Court concluded that the construction did not

“provide[] inadequate guidance to those charged with the duty of recommending

or imposing sentences in capital cases.” Id. at 256; see also Bell v. Cone, 543 U.S.

447, 457-58 (2005) (rejecting a vagueness challenge to the state court’s

narrowing construction of the same aggravating factor). 

Crawford cites Justice Marshall’s concurring opinion in Shell v.

Mississippi, which stated that an attempt to define “especially heinous, atrocious
No. 08-70045

 The instruction in Shell stated: “[T]he word heinous means extremely wicked or

9

shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to

inflict a high degree of pain with indifference to, or even enjoyment of[,] the suffering of

others.” 498 U.S. at 2 (Marshall, J., concurring) (alterations in original) (quotation omitted).

 Crawford’s brief asserts in passing that the death in this case did not meet the trial

10

court’s definition of “especially heinous, atrocious or cruel.” To the extent this contention is

premised on an alleged lack of evidence to support the jury’s finding of this aggravating factor,

the argument is not developed in Crawford’s brief and, considering the nature of the killing,

does not merit a COA in any event.

16

or cruel” using some of the language employed by the trial court in this case

would not pass constitutional muster. 498 U.S. at 2-3 (Marshall, J.,

concurring). However, Crawford ignores the trial court’s further narrowing of 9

the aggravating factor to “the conscienceless or pitiless crime which is

unnecessarily torturous to the victim,” as mentioned above. This additional

limiting construction of the aggravating factor cured any alleged vagueness or

overbreadth, and Crawford cites no authority to the contrary. No COA shall

issue on this claim.10

G. Whether the jury instructions failed to make clear that unanimity

was not required in order for individual jurors to consider

mitigating evidence

Crawford contends that based on the phrasing of the sentencing

instructions, there was a substantial probability that individual jurors believed

they could not consider mitigating evidence unless all twelve jurors agreed that

a particular mitigating factor applied. In Mills v. Maryland, the Supreme Court

held that “the sentencer must be permitted to consider all mitigating evidence.

The possibility that a single juror could block such consideration, and

consequently require the jury to impose the death penalty, is one we dare not

risk.” 486 U.S. 367, 384 (1988). 

The instructions nowhere stated that unanimity was required with respect

to the jury’s consideration of mitigating factors. They referred to a unanimity
No. 08-70045

17

requirement only with respect to aggravating factors. Crawford does not identify

any specific instruction which even reasonably suggests a unanimity

requirement for mitigating circumstances. Instead, he argues that the jury was

never instructed that unanimity was not required for any particular mitigating

factor before it could consider such evidence. 

In Stringer v. Jackson, this court rejected a similar argument even when

the instructions did, as an “oversight,” require unanimity for mitigating

circumstances. 862 F.2d 1108, 1112 (5th Cir. 1988), modified on other grounds

by Stringer v. Black, 979 F.2d 38 (5th Cir. 1992). The court held that “a reading

of the entire charge would not have led the jurors to think they were compelled

to ignore mitigating circumstances (unless found unanimously) in determining

an appropriate sentence.” Id. (emphasis added). 

In this case, as the district court concluded, the jury instructions, read as

a whole, do not require juror unanimity to consider mitigating circumstances.

Consequently, a COA is denied on this claim.

H. Whether a jury instruction impermissibly shifted the burden of

proof to Crawford by failing to require the jury to find that

aggravating circumstances outweighed mitigating circumstances

beyond a reasonable doubt

Crawford next challenges the following jury instruction:

In the event that you find that the mitigating

circumstance(s) do not outweigh or overcome the

aggravating circumstance(s), you may impose the death

sentence. Should you find that the mitigating

circumstance(s) outweigh or overcome the aggravating

circumstance(s), you shall not impose the death

sentence.
No. 08-70045

 A criminal defendant is “indisputably entitle[d] . . . to ‘a jury determination that [he] 11

is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’”

Apprendi, 530 U.S. at 477 (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)). In

Ring, the Supreme Court overruled that portion of Walton v. Arizona, 497 U.S. 639 (1990),

that “allow[ed] a sentencing judge, sitting without a jury, to find an aggravating circumstance

necessary for imposition of the death penalty.” 536 U.S. at 609. Instead, the Court concluded,

the Sixth Amendment right to trial by jury applied to “the factfinding necessary to put [a

defendant] to death.” Id.

18

Crawford argues that under Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Ring v. Arizona, 536 U.S. 584 (2002), this instruction was erroneous. First, he 11

contends that the jury was not instructed to find that aggravating circumstances

outweighed mitigating circumstances. Later in his brief, he argues that the

instruction omitted a reasonable doubt requirement from any potential jury

finding that mitigating circumstances did not outweigh aggravating

circumstances. His arguments on both fronts are foreclosed. 

Crawford points to no authority which mandates that a jury make an

affirmative finding that aggravating factors outweigh mitigating factors beyond

a reasonable doubt. Instead, the cases he cites hold that “the Sixth Amendment

requires that [aggravating factors] be found by a jury.” Ring, 536 U.S. at 609

(emphasis added). Moreover, as the district court noted, Kansas v. Marsh

confirmed “that a state death penalty statute may place the burden on the

defendant to prove that mitigating circumstances outweigh aggravating

circumstances.” 548 U.S. 163, 173 (2006) (emphasis added). It follows that a

state court’s failure to instruct the jury that it must find that aggravating

circumstances outweigh mitigating circumstances beyond a reasonable doubt

does not run afoul of the Sixth Amendment. A COA on this claim is denied.

I. Whether the use of kidnapping as both an element of capital

murder and an aggravating circumstance violated Crawford’s

Eighth Amendment rights
No. 08-70045

 Crawford’s attempt to distinguish the Louisiana statutory framework from the

12

Mississippi framework is unavailing. He contends that, unlike Louisiana, Mississippi does

not narrow the class of death-eligible defendants at the guilt phase. This contention is

contradicted by MISS. CODE ANN. § 97-3-19 (1992), which distinguishes capital murder from

noncapital murder. Sections 97-3-19(2)(a)-(g) set forth the specific circumstances in which a

defendant may be convicted of capital murder. 

Crawford further contends that all defendants charged with felony murder are eligible

for the death penalty in Mississippi. This contention is flatly contradicted by MISS.CODE ANN.

§ 97-3-19(1)(c), which designates as murder (as opposed to capital murder) any homicide “by

any person engaged in the commission of any felony other than” certain enumerated felonies.

19

As a prerequisite to Crawford’s capital murder conviction, the jury found

during its guilt deliberations that Ray’s murder occurred during the course of a

kidnapping. See MISS. CODE ANN. § 97-3-19(2)(e) (1992). During the sentencing

deliberations, the jury also found, as an aggravating circumstance, that the

killing was committed during the course of a kidnapping. Crawford contends

that duplicating an element of the offense as an aggravating circumstance

violates the Eighth Amendment. 

In Lowenfield v. Phelps, the Supreme Court held that a state capital

sentencing scheme may narrow the category of death-eligible defendants in

either of two ways. 484 U.S. 231, 246 (1988). “The legislature may itself narrow

the definition of capital offenses . . . so that the jury finding of guilt responds to

this concern, or the legislature may more broadly define capital offenses and

provide for narrowing by jury findings of aggravating circumstances at the

penalty phase.” Id. Elaborating on Lowenfield in Tuilaepa v. California, the 12

Court stated: “To render a defendant eligible for the death penalty in a homicide

case, we have indicated that the trier of fact must convict the defendant of

murder and find one ‘aggravating circumstance’ (or its equivalent) at either the

guilt or penalty phase.” 512 U.S. 967, 971-72 (1994). “The aggravating

circumstance may be contained in the definition of the crime or in a separate

sentencing factor (or in both).” Id. at 972. 
No. 08-70045

 Under Brady, “the suppression by the prosecution of evidence favorable to an accused 13

upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. The

Brady rule extends to impeachment evidence, in addition to exculpatory evidence. United

States v. Bagley, 473 U.S. 667, 676 (1985). 

20

Here, the kidnapping element, as a requisite element of a capital murder

conviction, was used to render Crawford eligible for a death sentence in the guilt

phase. It was then found as an aggravating factor during the sentencing phase

to support the jury’s actual imposition of the death penalty. This kind of scheme

was approved by the Tuilaepa Court and is not constitutionally invalid. A COA

shall not issue on this claim.

J. Whether the state’s failure to disclose an FBI report until after

Crawford’s trial amounted to a Brady violation

After his murder trial, Crawford’s counsel obtained an FBI report through

a Freedom of Information Act request. Crawford contends that the state’s

failure to produce this report, which was created in February 1993, prior to the

trial, was a violation of Brady v. Maryland, 373 U.S. 83 (1963). According to 13

Crawford, the report had impeachment value and would have supported his

theory that he did not lead the search to the body. Had the report been

produced, he argues, the jury would have believed his claim that he had no

memory of the murder and imposed a life sentence rather than death. 

At trial, the defense’s theory was that the FBI agents led Crawford to the

body, with the assistance of a specialized search aircraft. The state, meanwhile,

presented testimony that Crawford led the search effort, with the aircraft merely

assisting the searchers to position themselves relative to a nearby landmark.

FBI Agent Jackson testified at trial: “We could not have found [Ray’s body] in my

opinion even with the technical expertise that we had there with the very special

equipment that came from Washington. We could not have found her in the time
No. 08-70045

 Certain portions of the FBI report were apparently redacted pursuant to 5 U.S.C. 14

§ 552(b)(7)(E), which exempts records or information whose release to the public “would

disclose techniques and procedures for law enforcement investigations or prosecutions, or

would disclose guidelines for law enforcement investigations or prosecutions if such disclosure

could reasonably be expected to risk circumvention of the law.” No party disputes that these

redacted portions refer to the specialized search aircraft.

21

that was done without [Crawford’s] assistance.” Meanwhile, the FBI report

stated: “[REDACTED] was utilized and was extremely beneficial in guiding the

search team to the victim’s body. In fact, it was quite possible victim might not

have been located that evening without the use of [REDACTED].”14

The state court concluded that the FBI report had “little impeachment

value, much less the material value required for the grant of a new trial.”

Crawford II, 867 So. 2d at 204. Similarly, the district court found that

“Jackson’s trial testimony is not in conflict with the F.B.I. report, and the report

contains no exculpatory or impeachment evidence.” Crawford III, 2008 WL

4419347 at *32. The state defends this ruling, arguing that there is no

contradiction between the statement in the report and Jackson’s testimony. 

The report and testimony do not contradict one another. Most important,

the report states that “it was quite possible” that Ray’s body would not have been

found “that evening” without the help of the aircraft. This statement amounts

to a possibility that the body could have gone unlocated that evening, rather

than a categorical assertion. Meanwhile, Jackson’s testimony acknowledged the

“aircraft assistance” and “the technical expertise . . . with the very special

equipment.” Defense counsel did not probe the nature of this assistance on

cross-examination. 

Moreover, Crawford makes an unconvincing argument with respect to the

materiality requirement, i.e., that the result of the sentencing phase would have

been different had the FBI report been disclosed to the defense. See Bagley, 473

U.S. at 682. Considering the lack of contradiction between his testimony and the
No. 08-70045

22

report, Crawford has not shown a reasonable possibility that the jury would have

been persuaded that he could not recall the murder if the report had been

disclosed. A COA on this claim is denied.

K. Ineffective assistance of trial counsel

Crawford makes eight ineffective assistance claims against his trial

counsel. These claims are all governed by the framework established in

Strickland v. Washington, 466 U.S. 668 (1984). To prevail, Crawford must

establish: (1) “that counsel’s representation fell below an objective standard of

reasonableness”; and (2) “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 688, 694. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. at 694. 

(1) Whether trial counsel was ineffective for failing to develop a meaningful

attorney/client relationship

Crawford claims that his trial counsel, Pannell, was ineffective because he

did not establish a “relationship of trust” with his client. Crawford cites no

authority for the proposition that a criminal defendant is entitled to a

“meaningful” relationship with counsel or that the denial of such a relationship

amounts to ineffective assistance of counsel. Further, in Morris v. Slappy, the

Supreme Court explicitly “reject[ed] the claim that the Sixth Amendment

guarantees a ‘meaningful relationship’ between an accused and his counsel.”

461 U.S. 1, 14 (1983). No COA shall issue on this claim.

(2) Whether trial counsel was ineffective for failing to investigate critical

aspects of Crawford’s insanity defense

Crawford makes several allegations about the deficiencies of his expert

witnesses, arguing that his counsel failed to prepare them for trial. He contends

that his experts’ diagnoses were conflicting and further contends that those

experts were unfamiliar with the case as a result of his counsel’s failure to
No. 08-70045

23

prepare them. Other than a conclusory assertion, however, Crawford fails to

show how his counsel is responsible for the alleged inadequacies of and conflicts

in his experts’ testimony. 

In any event, the experts’ testimony was not deficient. During the guilt

phase and the sentencing phase, Dr. Stanley Russell testified that Crawford

suffered from psychogenic amnesia. During the sentencing phase, Dr. Martin

Webb testified that Crawford suffered from manic depressive illness. Webb

admitted that his diagnosis differed from Russell’s, but did not characterize

Russell’s diagnosis as incorrect. Russell, meanwhile, acknowledged his

disagreement with Webb’s diagnosis but noted that it “is not unusual for

psychiatrist[s] to disagree.” As the district court noted, the defense’s purpose at

the sentencing phase was to present mitigating evidence, rather than to

establish an insanity defense. Presenting evidence of two alleged mental

illnesses afflicting Crawford did not prejudice the case for mitigation. 

Crawford further argues that counsel’s failure to prepare the experts left

them unfamiliar with the facts of the case and constituted ineffective assistance

of counsel. He points to Russell’s inability to recall specific facts surrounding the

killing as support. However, Russell stated that any information that he had not

considered was irrelevant to his psychogenic amnesia diagnosis. Crawford also

argues that Webb had not read the FBI reports, but fails to explain how this fact

prejudiced his mitigation case such that the result would have been different if

Webb had read those reports. 

Finally, Crawford makes no persuasive argument concerning Strickland’s

prejudice prong. A COA is denied on this claim.
No. 08-70045

 Crawford’s brief also alleges that “counsel was ineffective for failing to litigate the 15

issues surrounding Petitioner’s competency to stand trial.” Crawford’s brief is unclear about

what“issues,” other than whether to request a hearing, were handled ineffectively.

24

(3) Whether trial counsel was ineffective for failing to seek a competency

evaluation prior to trial

Crawford alleges that his counsel was ineffective for failing to request a

competency hearing prior to trial. The basis for Crawford’s claim is the 15

affidavit of Dr. Lemly Hutt, dated May 17, 1993, which opines that he was

probably incompetent to stand trial. 

In the unrelated rape and assault case, Hutt examined Crawford on an

ongoing basis prior to February 1993 for his competency to stand trial on those

charges. During that time, Hutt found Crawford competent. On May 2, 1993,

Crawford suffered a seizure while incarcerated. As a result, Crawford was

prescribed and began taking Dilantin, an antiepileptic/antiseizure drug. In

Hutt’s opinion, excess Dilantin caused grogginess and incoherence, which

counsel had observed in Crawford. Reducing the Dilantin dose, meanwhile,

posed the risk of future seizures. 

Hutt did not have the opportunity to reexamine or observe Crawford

following the seizure. Hutt nevertheless opined that “there is a probability that

he is currently incompetent to stand trial.” He noted that he was “unable to

assess [Crawford’s] competency to stand trial with certainty” without an

opportunity to reexamine Crawford and review test results.

The district court agreed with the state court’s determination that defense

counsel was deficient for failing to seek a competency determination. However,

the district court upheld the state court’s ruling that Crawford suffered no

prejudice as a result and that, therefore, there was no ineffective assistance of

counsel. Although counsel may have been deficient in failing to seek a

competency determination, there is no evidence of resulting Strickland
No. 08-70045

25

prejudice. Critically, Crawford musters no evidence that he was actually

incompetent to stand trial due to the effect of his Dilantin medication. Further,

Russell, the defense’s expert, expressly testified that Crawford was competent

to stand trial. Crawford offers nothing to disturb the district court’s and state

court’s view of the evidence that he was competent to stand trial. Absent such

a showing, Crawford is unable to meet Strickland’s prejudice prong. A COA is

denied on this claim.

(4) Whether trial counsel was ineffective for conceding Crawford’s guilt during

his opening statement

During his opening statement, Pannell told the jury about the “escalating

nature of [Crawford’s] problems” and “his level of violence directed at women.”

Crawford contends that these statements amounted to a concession of guilt

without his approval, which constitutes ineffective assistance of counsel. As the

district court determined, however, counsel may have conceded that Crawford

committed certain acts and had certain tendencies, but persisted in arguing that

he was not guilty by reason of insanity. Crawford provides no authority for his

position that mentioning a client’s mental state or admitting that he committed

certain acts amounts to a concession of guilt when counsel is presenting an

insanity defense. A COA is denied on this claim.

(5) Whether trial counsel was ineffective for introducing prejudicial evidence

of a ransom note during presentation of Crawford’s case

During Crawford’s case-in-chief, Pannell called Crawford’s former counsel,

William Fortier, to explain why he had turned over Crawford’s medical records

to the FBI. Pannell was attempting to show that those medical records were

obtained under false pretenses. On cross-examination, Fortier discussed a

ransom note found in the attic of Crawford’s family home. Crawford contends

that by introducing this line of questioning, Pannell sabotaged his insanity

defense by opening the door to evidence of premeditation in the form of the
No. 08-70045

26

ransom note. He further argues that the disclosure of the ransom note negated

Dr. Russell’s testimony regarding Crawford’s psychogenic amnesia. 

The ransom note evidence was made admissible under state law because

Crawford mounted an insanity defense. See McLeod v. State, 317 So. 2d 389, 391

(Miss. 1975) (“When the defense is insanity, either general or partial, the door

is thrown wide open for the admission of evidence of every act in the accused’s

life relevant to the issue of insanity and is admissible in evidence. The trial

court is to be liberal in allowing the introduction of evidence or examination of

witnesses which tends to show the insanity or sanity of the accused.”). Crawford

does not make a credible argument that the ransom note was introduced solely

because Pannell threw open the door by questioning Fortier about disclosing

Crawford’s medical records. The note, as premeditation evidence, was already

admissible on the basis of Crawford’s affirmative defense. A COA is denied on

this claim.

(6) Whether trial counsel was ineffective for presenting an inadequate closing

argument following the guilt phase

During his closing argument, Pannell told the jury, inter alia, that “there

is no woman that is safe because that’s where [Crawford’s] rage is directed” and

that “everybody is in danger.” As with counsel’s opening statement, Crawford

contends that this amounted to an admission of guilt without his approval,

which constitutes ineffective assistance of counsel. Although counsel may have

admitted the commission of certain acts and even conceded that Crawford posed

certain dangers, these arguments were intended to support the insanity defense.

No COA shall issue on this claim.

(7) Whether trial counsel was ineffective for failing to investigate and present

significant mitigating evidence

Crawford asserts that counsel failed to investigate and present certain

mitigating evidence during the sentencing phase of the trial. He claims that
No. 08-70045

27

counsel failed to investigate and present evidence of his “emotional and mental

disturbances, physical and mental abuse, adaptation to prison conditions,

remorse, and substance abuse,” and that these omissions may have affected the

jury’s decision to impose a death sentence. He points to pretrial correspondence

from Deirdre Enright, an attorney at the Capital Defense Resource Center, to

Pannell, Webb, and Enright’s colleague Jim Craig. Enright apparently

conducted interviews with family members and associates of Crawford and

constructed a written narrative centered upon his emotional and mental

disturbances.

In Wiggins v. Smith, the Supreme Court set forth the standard for

evaluating a trial attorney’s investigation into mitigating evidence. 539 U.S.

510, 522-23 (2003). “[W]e focus on whether the investigation supporting

counsel’s decision not to introduce mitigating evidence of [the defendant’s]

background was itself reasonable. In assessing counsel’s investigation, we must

conduct an objective review of their performance, measured for ‘reasonableness

under prevailing professional norms,’ which includes a context-dependent

consideration of the challenged conduct as seen ‘from counsel’s perspective at the

time.’” Id. at 523 (citations omitted) (quoting Strickland, 466 U.S. at 688, 689).

On collateral review, the Mississippi Supreme Court found that Crawford

did not allege the existence of any evidence that was outside of counsel’s

knowledge. In other words, Crawford presented nothing which would impugn

the sufficiency of Pannell’s investigation. The state court therefore concluded

that there was no basis to even analyze whether counsel had conducted an

adequate investigation. Crawford II, 867 So. 2d at 218. In his brief to this court,

Crawford concedes that the results of Enright’s interviews were provided to
No. 08-70045

 Crawford cites the affidavit of Marion Ray Crawford, Charles Crawford’s father, who 16

stated that defense counsel “did not interview members of the family until the morning of . . .

trial.” Crawford, however, cites no authority for the proposition that Pannell needed to have

conducted in-person interviews, rather than rely on the reports of Enright. Assuming

arguendo that Pannell’s sole contact with family members was on the morning of trial, it does

not necessarily follow that he failed to discover mitigating evidence from them.

28

Pannell and does not otherwise highlight any evidence that Pannell failed to

discover. He has not shown that Pannell’s investigation was deficient. 16

Crawford also claims that Pannell failed to present certain mitigating

evidence. As discussed, the state court, lacking evidence to the contrary,

presumed that Pannell’s investigation was a complete one. It accordingly

treated his decisions about which evidence to present as within the ambit of trial

strategy and therefore entitled to “great deference.” Crawford II, 867 So. 2d at

218. Meanwhile, the district court found that the jury had the benefit of

testimony concerning Crawford’s evaluations at various mental health facilities,

unstable upbringing, night terrors, memory lapses, mood swings, headaches,

fear of the dark, and unusual behavior coloring photos of women’s faces. The

district court then determined that Crawford had not substantiated his

remaining allegations of adaptation to prison conditions, remorse, physical

abuse, or organic brain damage. Crawford III, 2008 WL 4419347, at *50. 

In Strickland, the Supreme Court held that “strategic choices made after

thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete

investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” 466 U.S. at 690-91; see also

Taylor v. Maggio, 727 F.2d 341, 347-48 (5th Cir. 1984) (“[T]he failure to present

a particular line of argument or evidence is presumed to have been the result of

strategic choice.”). The state court determined that counsel’s investigation was

a thorough one, and Crawford offers little to overcome the Strickland
No. 08-70045

29

presumption that Pannell’s decisions were “strategic choices.” Even when

counsel “might have done more to highlight particular portions of [a defendant’s]

social history in an effort to elicit more sympathy from the jury,” this court has

found such a performance “within the wide range of reasonable professional

assistance.” Ries v. Quarterman, 522 F.3d 517, 529 (5th Cir. 2008). Crawford

has not shown that trial counsel was deficient in failing to present certain

mitigating evidence. A COA is denied on this claim.

(8) Whether trial counsel was ineffective for failing to seek a continuance before

the sentencing phase

Finally, Crawford argues that counsel was ineffective in failing to secure

a limited continuance prior to the sentencing phase. He claims that counsel only

had ten minutes to prepare for the sentencing phase and was, by his own

admission, “exhausted.” Crawford contends that a continuance would have

enabled counsel to prepare more effectively for the sentencing phase.

A review of the record shows that Crawford conflates two different

moments from the trial. Following the return of the guilty verdict, counsel for

the state indicated that he needed ten minutes to prepare for the sentencing

phase. Crawford’s counsel voiced no objection to proceed to the sentencing phase

within that time frame. The record shows that counsel stated he was

“exhausted” following the sentencing phase testimony, not before it began. The

exhaustion comment was part of an argument to continue further proceedings,

including a jury charge conference and closing arguments, until the following

morning. The trial judge accepted this argument and, over the state’s objection,

adjourned until the following morning. 

The record shows no reason for counsel to have sought a continuance prior

to the sentencing phase. To the extent Crawford claims counsel should have

done so due to exhaustion, he has misread the record. A COA is denied on this

claim.
No. 08-70045

30

CONCLUSION

For the foregoing reasons, we GRANT Crawford a COA on his claim that

he was subjected to a psychiatric evaluation of his competency without the

benefit of counsel in violation of the Sixth Amendment. To permit the district

court an opportunity to develop the record, if necessary, and reconsider the

merits of Crawford’s claim, we VACATE that portion of its order denying relief

on this basis and REMAND for further proceedings. Crawford’s motion for a

COA is DENIED in all other respects.