* 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this opinion should not be published and is not precedent except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. 00-10326

 

JASON ERIC MASSEY

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION

Respondent-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

(3:97-CV-2572)

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September 13, 2000

Before HIGGINBOTHAM, WIENER, and PARKER, Circuit Judges.

WIENER, Circuit Judge:*

In this habeas corpus action, Petitioner-Appellant Jason Eric

Massey appeals the district court’s denial of his application for

a Certificate of Appealability on a writ of habeas corpus, pursuant

to 28 U.S.C. § 2254. Massey contends that his constitutional

rights were violated in two ways. First, he claims that the trial

court violated his Fourteenth Amendment rights by denying

sufficient funds to pay for both DNA testing and the particular DNA
1 See Massey v. State, 933 S.W.2d 141 (Tex. Crim. App.

1996).

2

expert whom Massey wanted to testify at the sentencing phase of the

trial to refute the DNA evidence presented by the prosecution. His

second claim is that his Sixth Amendment rights were violated by

the ineffective assistance of his counsel in failing to put on

psychological testimony that Massey would not be a continuing

threat of violence in prison (conceding that he would be a threat

were he released from prison).

I.

FACTS AND PROCEEDINGS

Massey was charged in state court with the murders of two

teenagers. He was convicted of two counts of capital murder and

was sentenced to death. The Texas Court of Criminal Appeals

affirmed.1 After exhausting his direct appeals, Massey filed for

habeas relief in state court and exhausted his claims there, to no

avail. Massey then applied for a writ of habeas corpus in federal

district court, which the court denied at the recommendation of the

magistrate judge. He appealed that decision to us, seeking a COA.

For the reasons that follow, we deny that application.

II.

ANALYSIS

A. Standard of Review

We review an application for a COA under the standard set

forth by the Supreme Court in Barefoot v. Estelle, which requires
2 Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996); see

Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394 

(1983).

3 28 U.S.C. § 2254(d).

4 Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495, 1523

(2000).

3

“the habeas petitioner to make a substantial showing of the denial

of a federal constitutional right.”2 Applications for a writ of

habeas corpus from a state court are reviewed under the standard

set forth in the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), 28 U.S.C. § 2254. Under that standard, we may not issue

a writ of habeas corpus with respect to “any claim that was

adjudicated on the merits in State court proceedings” unless the

state court’s adjudication of that claim resulted in “a decision

that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court

of the United States . . . ; or resulted in a decision that was

based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”3 A decision is

contrary to clearly established federal law “if the state court

arrives at a conclusion opposite to that reached [by the Supreme

Court] on a question of law or if the state court decides a case

differently than [the] Court has on a set of materially

indistinguishable facts.”4 A decision is an unreasonable

application of federal law “if the state court identifies the

correct governing legal principle . . . but unreasonably applies
5 Id.

6 Chambers v. Johnson, 2000 WL 701934, *2 (5th Cir. 2000)

(quoting 28 U.S.C. § 2254(d)(2)).

4

that principle to the facts of the prisoner’s case.”5 Factual

findings of the state court are presumed to be correct and we defer

to these findings “unless they were ‘based on an unreasonable

determination of the facts in light of the evidence presented in

the state court proceeding.’”6

B. The Fourteenth Amendment Claim

Massey first claims that the state trial court violated his

Fourteenth Amendment rights by denying him sufficient funds with

which to mount his defense. As the State was relying heavily on

DNA evidence in its case against him, Massey requested funds from

the trial court with which to obtain private DNA testing from a

Seattle-based laboratory. After the court provided the necessary

funds for that testing, Massey sought additional funds from the

court to pay for the services of the DNA expert of his choice, Dr.

John C. Gerded, to testify at the punishment phase of his trial.

The trial court refused to grant additional funds to pay for this

expert although it did offer to subpoena any one of a number of

other qualified experts. Then, on Massey’s subsequent request, the

trial court authorized expenditure of the funds initially granted

to pay for the Seattle DNA testing for use in securing Dr. Gerded’s

testimony. Presumably because he had requested such re-allocation,
7 Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir. 1998).

8 See Yohey v. Collins, 985 F.2d 222, 227 (5th Cir. 1993);

Scott v. Louisiana, 934 F.2d 631, 633 (5th Cir. 1991). 

9 See Akes v. Oklahoma, 470 U.S. 68, 84, 105 S. Ct. 1087,

1097 (1985).

5

Massey did not object to this ruling at the time. He did, however,

proceed to use the funds in question in mounting his defense. 

As Massey did not timely object to the trial court’s refusal

to allocate the full amount of funding requested, his claim is

procedurally barred by the Texas contemporary objection rule. The

“Texas contemporary objection rule is strictly or regularly applied

evenhandedly to the vast majority of similar claims, and is

therefore an adequate procedural bar.”7 

We note in passing that even if Massey’s Fourteenth Amendment

claim were not procedurally barred, it would still fail on the

merits. The State must provide indigent defendants with the

assistance of non-psychiatric experts when the evidence to which

their testimony would be relevant is both critical to the

conviction and subject to varying expert opinions.8 This

entitlement does not mean, however, that the defendant must be

provided with the particular expert of his choice; so long as the

court is willing to make neutral experts available, the

constitutional requirements of the Fourteenth Amendment are met.9

In the instant case, the trial court provided funds to Massey

sufficient to obtain DNA testing and even agreed to pay for
10 Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.

Ct. 2052, 2064, 2068 (1984).

6

additional testing. It then offered to subpoena a neutral DNA

expert to testify on Massey’s behalf; however, Massey insisted on

hiring Dr. Gerded as he was the only expert who agreed with the

interpretation of the DNA evidence that Massey wished to advance.

At Massey’s request, the trial court agreed to allow Massey to

spend funds initially granted to pay for the additional DNA testing

to obtain the testimony of Dr. Gerded. As Massey was not

constitutionally entitled to the expert of his choosing and the

funding for the additional testing was re-allocated in accordance

with Massey’s request, the trial court did not violate Massey’s

Fourteenth Amendment rights. 

C. Ineffective Assistance of Counsel

Massey’s second contention is that he was denied the effective

assistance of counsel by the failure of his trial counsel to put on

evidence at the sentencing phase to demonstrate that Massey would

not pose a future danger if incarcerated in prison for life. To

succeed on a claim of ineffective assistance of counsel, the

defendant must show that: (1) his “counsel’s representation fell

below an objective standard of reasonableness”; and (2) “there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”10

This test is disjunctive, so failure to succeed on either prong is

fatal to a petitioner’s claim.
11 Id. at 690-91, 2066.

12 This argument ignores the commonly known fact that

prisons regularly employ many female employees, both as guards

and in other capacities. See Mata v. Johnson, 210 F.3d 324, 326

(2000).

7

A trial counsel’s “strategic choices made after thorough

investigation of the law and facts relevant to plausible options”

are to be reviewed with great deference and, in fact, are

“virtually unchallengeable.”11 The decision not to put on the kind

of evidence advocated by Massey in an effort to show that he would

not have been a danger if he were sentenced to life in prison was

a valid tactical decision made by Massey’s counsel. Massey faults

his trial counsel for not trying to prove that Massey would not be

dangerous while in prison because his compulsion to kill and

mutilate extends only to women and manifests itself only when he

experiences uncontrollable urges toward members of that sex. Thus,

he advances, he would not become violent in a strictly controlled

environment populated solely by males, such as prison.12 If counsel

had made this argument, however, it would have led inevitably to

the revelation of the grisly facts of Massey’s crime, as well as

all the lurid details of Massey’s violent and lustful desires. We

cannot fault an attorney who avoids the risk of reintroduction of

such evidence at the sentencing phase, especially in light of the

minimal likelihood of this argument’s success. 

Instead, Massey’s trial counsel introduced other mitigating

evidence, attempting to highlight the fact that Massey had been
13 Strickland, 466 U.S. at 494.

8

mistreated as a child. Such tactics evidence a reasonable choice

of counsel. 

Moreover, Massey fails to show that he was prejudiced by the

failure to put on the evidence he advocated regarding future

dangerousness. Given the overwhelming evidence against Massey, the

extreme nature of the crimes he committed, and the unpersuasiveness

of the flawed argument he wished to present, it cannot be said

seriously that “but for counsel’s [failure to put on evidence of

lack of future dangerousness in prison] the result of the

proceeding would have been different.”13 

III.

CONCLUSION

For the foregoing reasons we agree with the district court’s

denial of Massey’s application for a COA: He has failed to make a

substantial showing of the denial of his constitutional rights.

Therefore we affirm the decision of the district court and deny

Massey a COA.

AFFIRMED; COA DENIED.