IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-60067

_____________________

HAROLD AMOS BARNARD, JR.,

Petitioner-Appellant,

v.

JAMES A. COLLINS, Director, Department of Criminal 

Justice, Institutional Division,

Respondent-Appellee.

_________________________________________________________________

On Application for Certificate of Probable Cause

and Motion for Stay of Execution

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

(January 31, 1994)

Before KING, JOLLY, and SMITH, Circuit Judges.

KING, Circuit Judge:

Harold Amos Barnard, Jr., a death-row inmate in the Texas

Department of Criminal Justice (TDCJ), Institutional Division,

filed his second petition for federal habeas corpus relief,

pursuant to 28 U.S.C. § 2254, in the United States District Court

for the Southern District of Texas on January 27, 1994. Barnard

is scheduled to be executed after midnight on February 2, 1994. 

Barnard requested that the district court stay his execution,

hold an evidentiary hearing on the issue of his competency, and

issue a writ of habeas corpus vacating his death sentence. 

Barnard also requested that the district court appoint counsel
 

1 A more detailed recitation of the facts can be found in

Barnard v. State, 730 S.W.2d 703 (Tex. Crim. App. 1987), cert.

denied, 485 U.S. 929 (1988).

2

for him pursuant to 21 U.S.C. § 848(q)(4)(B). On January 28,

1994, the district court denied Barnard all relief and a

certificate of probable cause (CPC). Barnard then filed a notice

of appeal to this court, along with an application for a CPC, a

motion to stay his execution, and a renewed motion for

appointment of counsel. Although the district court denied

relief on the ground that Barnard had abused the writ, we do not

reach this question in our consideration of his entitlement to a

CPC and a stay of execution, but instead hold that Barnard has

not made a substantial showing of the denial of a federal right. 

Thus, we deny his application for a CPC and his motion to stay

his execution. We reverse the district court's denial of

counsel, and in the light of Barnard's exigent circumstances, we

grant his motion to appoint counsel.

I. BACKGROUND

A jury convicted Barnard of capital murder on April 1, 1981,

for the killing of sixteen-year-old Tuan Nguyen during a robbery

of a convenience store in Galveston, Texas, on June 6, 1980.1

After a punishment hearing, the jury affirmatively answered the

three special issues submitted pursuant to Texas law, thereby

requiring that Barnard be sentenced to death.

On April 8, 1987, the Texas Court of Criminal Appeals

affirmed Barnard's conviction, and on July 17, 1987, the state

trial court pronounced Barnard's death sentence and set his
3

execution for September 23, 1987. On February 29, 1988, the

Supreme Court denied Barnard's petition for writ of certiorari. 

See Barnard v. State, 730 S.W.2d 703 (Tex. Crim. App. 1987),

cert. denied, 485 U.S. 929 (1988). 

The Texas Court of Criminal Appeals denied Barnard's first

petition for state habeas corpus relief on January 6, 1989, and

Barnard's execution was rescheduled for March 14, 1989. On

February 21, 1989, Barnard filed a petition for federal habeas

corpus relief and an application for stay of execution in the

United States District Court for the Southern District of Texas. 

The district court stayed the execution pending its consideration

of Barnard's petition.

On December 12, 1989, the district court entered a final

judgment dismissing the petition for a writ of habeas corpus and

lifting the stay of execution. After Barnard filed a notice of

appeal, the district court granted a CPC and entered a stay of

execution on February 7, 1990.

On appeal, Barnard contended that the district court erred

in rejecting his claims that (1) the Texas death sentencing

statute prevented the jury in his case from considering and

giving effect to his mitigating evidence in violation of the

Sixth and Eighth Amendments to the United States Constitution

under Penry v. Lynaugh, 492 U.S. 302 (1989); (2) the state trial

court's instruction on temporary insanity caused by intoxication

prevented the jury from giving any mitigating consideration to

this evidence unless Barnard proved that he was so intoxicated
4

that he was insane at the time of the offense; (3) evidence of

his good character--including evidence of his carpentry skills,

work history, and familial responsibility and support--was not

adequately treated within the special issues; and (4) Barnard had

received ineffective assistance of counsel. Finding no error, a

panel of this court affirmed the district court's denial of

habeas relief and vacated the stay of execution. Barnard v.

Collins, 958 F.2d 634, 643 (5th Cir. 1992), cert. denied, 113 S.

Ct. 990 (1993). Rehearing was denied on May 22, 1992. Barnard

v. Collins, 964 F.2d 1145 (5th Cir. 1992). The state trial court

rescheduled Barnard's execution for March 16, 1993. 

The Supreme Court denied certiorari review of Barnard's

petition for federal habeas relief on January 11, 1993. Barnard

v. Collins, 113 S. Ct. 990 (1993). On March 8, 1993, the Supreme

Court also denied Barnard's application for a stay of execution

and petition for rehearing, in which he reargued his Penry claim

in light of the Court's decision in Graham v. Collins, 113 S. Ct.

892 (1993).

On March 10, 1993--six days before his then current

execution date and nearly five years after the execution date

which was set after Barnard's conviction became final--Barnard

filed his second petition for state habeas relief, in which he

asserted that he was incompetent to be executed under Ford v.

Wainwright, 477 U.S. 399 (1986), and that the Texas special

issues did not allow the jury to reflect adequately the

mitigation value of his proffered evidence. He also argued that
5

Article 8.04(b) of the Texas Penal Code, which the judge read to

the jury as an instruction at the sentencing phase of the trial,

was unconstitutional both on its face and as applied. On March

15, 1993, the state court issued its findings and conclusions,

recommending that habeas relief be denied. Later that same day,

the Texas Court of Criminal Appeals granted Barnard a stay of

execution.

On May 11, 1993, the Texas Court of Criminal Appeals ordered

the state trial court to hold an evidentiary hearing on Barnard's

claim that he was incompetent to be executed. That hearing was

held on July 22, 1993. The trial court then issued its findings

and conclusions and recommended that Barnard's petition for

habeas relief be denied on September 29, 1993. On November 8,

1993, the Texas Court of Criminal Appeals adopted the trial

court's findings and conclusions and denied Barnard's petition

for habeas relief. Barnard's execution date was then rescheduled

for February 2, 1994. 

On January 27, 1994, Barnard filed his second habeas

petition in federal district court. He requested that the

district court stay his execution, hold an evidentiary hearing to

determine whether Barnard was competent to be executed, and issue

a writ of habeas corpus vacating his death sentence. The

attorney who had filed Barnard's second federal habeas petition

also requested that the district court appoint him to represent

Barnard pursuant to 21 U.S.C. § 848(q)(4)(B). On January 28,

1994, the district court denied Barnard all relief, denied
6

Barnard a CPC, and denied his attorney's motion for appointment

of counsel. Barnard then filed a notice of appeal with this

court, along with an application for a CPC, a motion to stay his

execution, and a renewed motion for appointment of counsel.

II. COMPETENCY ISSUE

In response to Barnard's petition, the State moved to

dismiss the petition as an abuse of the writ, pursuant to Rule

9(b), Rules Governing Section 2254 Cases. Under Rule 9(b), a

second or successive petition in which new grounds for relief are

alleged may be dismissed if the petitioner's "reasonable and

diligent investigation" would have resulted in his presenting

these grounds in a previous habeas petition. See McCleskey v.

Zant, 499 U.S. 467, 493 (1991). Once abuse of the writ has been

pleaded by the State, raised by the district court sua sponte or

raised as required in Hawkins v. Lynaugh, 862 F.2d 487, 489 (5th

Cir.), stay granted, 109 S. Ct. 569 (1988), vacated and remanded

on other grounds, 110 S. Ct. 1313 (1990), the petitioner must

show by a preponderance of the evidence that he has not abused

the writ or otherwise violated Rule 9(b). Andre v. Guste, 850

F.2d 259 (5th Cir. 1988); Johnson v. McCotter, 803 F.2d 830, 832

(5th Cir. 1986). 

According to the district court, it was clear from the

evidence put forth by Barnard that he could not meet this burden. 

The district court found that although there was some evidence

that Barnard's condition had persistently worsened over the

years, it was abundantly clear that the question of his
7

competency to be executed was extant at the time of his first

habeas petition because "Barnard's habeas counsel have known and

asserted for years that Barnard's sanity is questionable." Thus,

because the district court determined that Barnard failed to

demonstrate good cause for his failure to raise the issue of his

competency in his earlier writ, the court dismissed Barnard's

petition on grounds that he had abused the writ. 

We need not reach the question of whether Barnard abused the

writ for purposes of his entitlement to habeas relief on the

merits. Even if we assume arguendo that Barnard did not abuse

the writ, we find that Barnard has not made a substantial showing

of a denial of a federal right, and thus we deny his application

for a CPC and his motion to stay his execution.

Standard of Review

This court reviews an application for a CPC using the same

standard as that used by the district court in the first

instance. That is, we will grant a CPC to appeal only if the

applicant can make a substantial showing of a denial of a federal

right. Barefoot v. Estelle, 463 U.S. 880. 893 (1983); Drew v.

Collins, 5 F.3d 93, 95 (5th Cir. 1993), petition for cert. filed

(Jan. 5, 1994). This standard does not require the applicant to

show that he would prevail on the merits, but it does require him

to show that the issues he presents are debatable among jurists

of reason. Barefoot, 463 U.S. at 893 n.4; Drew, 5 F.3d at 95. 

The same standard essentially applies to an application for a

stay of execution. Drew, 5 F.3d at 95 (citing Delo v. Stokes,
8

495 U.S. 320, 321 (1990) ("A stay of execution pending

disposition of a second or successive federal habeas petition

should be granted only when there are 'substantial grounds upon

which relief might be granted.'" (quoting Barefoot, 463 U.S. at

895))).

Discussion

Barnard argues that his application for CPC should be

granted because he is presently incompetent to be executed under

Ford v. Wainright, 477 U.S. 399 (1986). He asserts that the

state trial court's finding that Barnard was competent to be

executed, issued after an evidentiary hearing held on July 22,

1993, is not entitled to be given a "presumption of correctness"

in federal court because the state court's treatment of the

competency issue was not "full and fair." 

Section 2254(d) directs federal habeas courts to presume the

correctness of a state court 

determination after a hearing on the merits of a factual

issue . . . unless the applicant shall otherwise establish

or it shall otherwise appear, or the respondent shall admit

. . . . . .

(1) that the factfinding procedure employed by the

State court was not adequate to afford a full and fair

hearing; . . .

(8) or unless . . . the Federal court on a

consideration of such part of the record as a whole [on

which the factfinding was based] concluded that such

factual determination is not fairly supported by the

record.

28 U.S.C. § 2254(d); see Sumner v. Mata, 449 U.S. 539, 546-47

(1981). A state court's conclusion regarding a petitioner's

competency to be executed is entitled to such a presumption. 
 

2 This court has determined that the plurality opinion in

Ford was made a majority opinion by the concurring opinion of

Justice Powell, whose enunciated standard for competency to be

executed was that a person know the fact of his impending

execution and the reason for it. Lowenfield v. Butler, 843 F.2d

183, 187 (5th Cir. 1988). Accordingly, this court has adopted

the standard as enunciated by Justice Powell as the Ford

standard. See, e.g., Garrett v. Collins, 951 F.2d 57 (5th Cir.

1992); Lowenfield, 843 F.2d at 187. 

 

3 Although Barnard had also submitted other medical reports

and affidavits to the state trial court, the court found that

only the reports of Drs. Murphy and Childs related to a current

diagnosis of Barnard.

9

Garrett v. Collins, 951 F.2d 57, 59 (5th Cir. 1992); see Ford,

477 U.S. at 410-411. 

The state habeas court found, after a full evidentiary

hearing in which the court was able to review both live and

affidavit testimony, that Barnard was competent to be executed

under the Ford standard, i.e., that a prisoner must understand

the fact of his impending execution and the reason for it.2

During the hearing, at which Barnard was present but did not

testify, Barnard presented, in addition the testimony of his

former attorney, the live medical testimony of Dr. Philip Murphy,

a psychologist, and Dr. Allen Childs, a psychiatrist, both of

whom had recently interviewed Barnard.3 They agreed that Barnard

suffers from delusions that he is being persecuted by various

minority groups. In rebuttal, the State presented the live

testimony of Dr. Edward B. Gripon, who had been ordered by the

court to examine Barnard and who testified that although Barnard

suffered serious delusions, Barnard understood the fact of his
 

4 We note that Barnard's reliance on the Supreme Court's

decision in Godinez v. Moran, 113 S. Ct. 2680 (1993), for the

proposition that the standard for a prisoner's competency to be

executed should include an "assistance prong" is misplaced. In

Godinez, the Supreme Court held that the competency standard in

the context of standing trial or in the context of waiving one's

right to counsel or pleading guilty were the same: that a

defendant have a sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding and a

rational as well as factual understanding of the proceedings

against him. Id. at 2686. The Godinez Court did not, however,

mandate the addition of an "assistance prong" to the standard for

determining whether a person was competent to be executed.

 

10

impending execution and the reason for it. In one of its factual

findings, the state court stated that

[b]ased on the reports and evaluations and testimony of

Applicant's and the Court's mental health experts, Texas

Department of Criminal Justice medical records, and the

sworn statements of TDCJ personnel, the Court finds that

Applicant comprehends the nature, pendency, and purpose of

his execution. Applicant knows that he was found guilty of

killing a young boy in a robbery in Galveston County and

that his pending execution was because he had been found

guilty of that crime. He knew of the date of his scheduled

execution and that it would be lethal injection by use of an

intravenous injection. Applicants' experts do not establish

that he is unaware of the fact of or the reason for his

impending execution, but rather that his perception of the

reason for his conviction and pending execution is at times

distorted by a delusional system in which he attributes

anything negative that happens to him to a conspiracy of

Asians, Jews, Blacks, homosexuals, and the Mafia (emphasis

added).

The state court thus found that Barnard knew that he was going to

be executed and why he was going to be executed--precisely the

finding required by the Ford standard of competency.4

Barnard contends that this finding should not be given a

presumption of correctness under § 2254(d) because the trial

court's hearing could not possibly have been "full and fair" if

the trial court ignored the testimony of seven impartial
11

witnesses in favor of one court-appointed witness. However, we

agree with the district court that an unexpected outcome does not

automatically render the state procedure unfair--especially when

Barnard was afforded a full-blown evidentiary hearing. We thus

find meritless Barnard's contention that Texas did not afford him

a "full and fair" proceeding. 

Barnard also argues that the state court's finding of

competence should not be given a presumption of correctness

because such a determination is not "fairly supported by the

record." This argument, too, is without merit. Although the

state court had before it various affidavits and doctors' reports

on Barnard's competency which Barnard had filed, the court found

that only the reports of Drs. Murphy and Childs--who gave live

testimony for Barnard at the hearing--related to Barnard's

current diagnosis. Dr. Gripon, who testified for the State and

who had recently reviewed Barnard's medical records and

interviewed Barnard, also gave live testimony related to

Barnard's current diagnosis. This court has made it clear that

"deference to a state court's findings is particularly important

'where a federal court makes its determinations based on the

identical record that was considered by the state appellate

court.'" Self v. Collins, 973 F.2d 1198, 1213 (5th Cir. 1992)

(quoting Sumner, 449 U.S. at 547), cert. denied, 113 S. Ct. 1613

(1993). Section 2254(d) "'gives federal habeas courts no license

to redetermine credibility of witnesses whose demeanor has been

observed by the state trial court'" or to disagree with the
12

weight the state court gave to the testimony of those witnesses

whose demeanor the federal habeas court did not observe. Id. at

1214 (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). 

Barnard also argues that the state court's finding of

competency should not be given § 2254(d) deference because such a

finding is a mixed question of law and fact and thus not subject

to a presumption of correctness under § 2254(d). The cases to

which Barnard cites for support of this argument, however,

concern the issue of competency to stand trial and not the issue

of competency to be executed. This court has previously

determined that a state court's finding of competency to be

executed is entitled to a presumption of correctness under

§ 2254(d). See Garrett, 951 F.2d at 59; see also Ford, 477 U.S.

at 410-11 (explaining that a federal habeas court is required to

hold an evidentiary hearing on the issue of the petitioner's

competency to be executed if the petitioner shows that one of the

statutory exceptions to § 2254(d) is applicable in his specific

case). Even if we were to conclude, however, that competency to

be executed is a mixed question of law and fact, the pure

factfindings that underlie the state court's determination that

Barnard is competent to be executed are entitled to a presumption

of correctness, and based on those factfindings, we would reach

the same legal conclusion.

For the foregoing reasons, we cannot determine that Barnard

has made a substantial showing of a denial of a federal right. 
 

5 We note that the district court ordered that the parties

file no further pleadings in the district court on the issues

raised by Barnard's second habeas petition and associated

filings, "including motions to reconsider and the like." The

Federal Rules of Civil Procedure give litigants the right to file

certain post-judgment motions, and we think it ill-advised to

issue such a directive as a routine matter.

 

6 Although a CPC is required in order to appeal the denial

of habeas corpus relief, there is no such requirement in order to

appeal the denial of the appointment of counsel under

§ 848(q)(4)(B). See Moreno v. Collins, No. 94-50026, slip op. at

3 n.1 (5th Cir. 1994).

13

Accordingly, we deny his application for a CPC and his motion to

stay his execution.5

III. APPOINTMENT OF COUNSEL UNDER § 848(q)

Barnard also argues that the district court erred in denying

his motion to have counsel appointed for him, pursuant to 21

U.S.C. § 848(q)(4)(B).6 Although we did not address the question

whether Barnard abused the writ for purposes of his entitlement

to habeas relief on the merits, we address the question of abuse

of the writ here in relation to the district court's denial of

counsel's motion to be appointed under § 848(q)(4)(B).

The district court dismissed Barnard's petition for abuse of

the writ because the court determined that it was "abundantly

clear" that the question of Barnard's sanity was extant at the

time of the filing of his first habeas petition. Nonetheless, we

note that the issue of Barnard's sanity was not urged at trial

(Barnard himself testified at trial) or on direct appeal to the

Texas Court of Criminal Appeals, except as it was incident to his

claims relating to voluntary intoxication. We also note that

more than five years has transpired since Barnard's first
14

scheduled execution date after his conviction became final and

that by the district court's own admission, there is evidence in

the record that Barnard's condition has persistently worsened

over the years.

Further, Texas employs its own abuse of the writ doctrine,

which requires in certain instances that a petitioner show "good

cause" why claims urged in a second or successive petition were

not urged earlier or face dismissal of those claims. See TEX.

CODE CRIM. P. art. 11.07 (Vernon 1977 & Supp. 1993); Ex parte

Emmons, 660 S.W.2d 106, 110 (Tex. Crim. App. 1983); Ex parte

Carr, 511 S.W.2d 523, 525-26 (Tex. Crim. App. 1974). Although

the showing of "good cause" which Texas requires may well not be

the same as the showing of "cause and prejudice" required in

federal cases, we find it relevant that abuse of the writ was not

raised at the state level with respect to Barnard's claim of

incompetency to be executed in his second state habeas petition

and that the Texas Court of Criminal Appeals stayed Barnard's

execution on the eve of the set execution date and mandated an

evidentiary hearing on the issue of competency.

Moreover, our research indicates no reported decision in

which a federal circuit court or the Supreme Court has denied

relief of a petitioner's competency-to-be-executed claim on

grounds of abuse of the writ. Assuming without deciding that the

abuse of the writ doctrine is nonetheless applicable to a

petition for federal habeas relief premised on a Ford claim, the

district court's determination that Barnard's claim constituted
 

7 In McCleskey v. Zant, the Supreme Court applied the "cause

and prejudice" analysis it had adopted for cases of procedural

default to an abuse of the writ inquiry. 111 S. Ct. at 1470. 

Thus, the Court determined that to excuse his failure to raise a

claim in a previous habeas petition, the petitioner had to show

cause for not raising his claim earlier or face dismissal of his

petition for abuse of the writ. Id. "The requirement of cause

in the abuse of the writ context is based on the principle that

petitioner must conduct a reasonable and diligent investigation

aimed at including all relevant claims and grounds for relief in

the first federal habeas petition." Id. (emphasis added). The

Court also stated that "if petitioner cannot show cause, the

failure to raise the claim in an earlier petition may nonetheless

be excused if he or she can show that a fundamental miscarriage

of justice would result from a failure to entertain the claim." 

Id.

15

an abuse of the writ because he could not show "cause and

prejudice" for his failure to raise this claim in his earlier

petition seems premature in the absence of an evidentiary hearing

or other appropriate proceeding to determine exactly when

Barnard's counsel could have discovered through reasonable

diligence and investigation that Barnard was incompetent to be

executed.7 Because the determination of Barnard's competency to

be executed is a fact-intensive inquiry, the point at which

Barnard's counsel should have initiated that inquiry is equally

fact-intensive. Although after a hearing, the district court

might be in a position to conclude that Barnard's competency

claim should have been raised in his first round of state and

federal habeas petitions (initiated in October 1988), we cannot

say, absent a more complete factual development, that this is

true. 

With the foregoing discussion in mind, we believe that the

district court was incorrect in denying counsel's motion for
 

8 Section 848(q)(4)(B) provides in pertinent part that 

[i]n any post conviction proceeding under section 2254

or 2255 of Title 28, seeking to vacate or set aside a

death sentence, any defendant who is or becomes

financially unable to obtain adequate representation or

investigative, expert, or other reasonably necessary

services shall be entitled to the appointment of one or

more attorneys and the furnishing of such other

services . . . .

16

appointment under 21 U.S.C. § 848(q)(4)(B). On its face,

§ 848(q)(4)(B) does not condition the appointment of counsel on

the substantiality or nonfrivolousness of petitioner's habeas

claims.8 Compare 21 U.S.C. § 848(q)(4)(B) with 28 U.S.C.

§ 1915(d) ("The court may request an attorney to represent any

such person unable to employ counsel and may dismiss the case if

the allegation of poverty is untrue, or if satisfied that the

action is frivolous or malicious."). Even if judicial

interpretation of § 848(q)(4)(B) may later condition the

appointment of counsel on some level of substantiality or

nonfrivolousness in a petitioner's habeas claims, we cannot say

that in the instant case, without the benefit of a hearing on the

subject of whether counsel should have raised earlier the matter

of his competency to be executed, Barnard's competency claim was

such that the district court should have denied counsel's motion

for appointment under § 848(q)(4)(B). The district court

therefore erred in denying counsel's motion on abuse of the writ

grounds. Counsel has a similar motion pending in this court, and

in view of the shortness of time remaining before his execution,

we grant the motion.
17

The district court will be required to hold a hearing at

some future date to determine whether and in what amount fees are

to be awarded Barnard's appointed counsel. As the district court

is already aware, counsel waited more than ten weeks from the

time the Court of Criminal Appeals denied Barnard relief on his

second state habeas petition to file a second federal habeas

petition and a motion to be appointed with the district court--

only a few days before Barnard's scheduled execution. At the

hearing, the district court should determine whether counsel, as

an officer of the court, had good cause for delay in filing

Barnard's second habeas petition and if not, whether the amount

of fees to which counsel would otherwise be entitled should be

reduced as a sanction. See Thomas v. Capital Security Servs.,

Inc., 836 F.2d 866, 878 (5th Cir. 1988) (en banc) ("[T]he basic

principle governing the choice of sanctions is that the least

severe sanction adequate to serve the purpose should be

imposed.").

IV. CONCLUSION

For the foregoing reasons, we DENY Barnard's application for

a CPC and his motion for stay of execution. We REVERSE that

portion of the district court's order denying appointment of

counsel under § 848(q)(4)(B). We grant the motion for

appointment of counsel under § 848(q)(4)(B) and Barnard's

application for in forma pauperis status.