UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 95-10527

_______________________

JOHN FEARANCE, JR.,

Petitioner-Appellant,

versus

WAYNE SCOTT, DIRECTOR TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________________________

June 18, 1995

On Application for Certificate of

Probable Cause and Motion for Stay of Execution

Before JONES, DUHÉ and WIENER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Fearance has been tried and sentenced to death

twice for stabbing Larry Faircloth nineteen times and causing him

to bleed to death in his own bedroom, during Fearance's aborted

burglary. This court rejected Fearance's first federal habeas

petition and denied a certificate of probable cause to appeal only

three months ago. Following his third collateral trip through the

state courts, Fearance filed for § 2254 habeas relief in the

federal district court for the second time. Fearance has now2

reemerged before this court, three working days befor e his

scheduled execution, again se arching for a stay of execution and

application for certificate of probable cause to appeal.

Concluding that he has not alleged grounds for relief that are

reasonably debatable among jurists, Barefoot v. Estelle , 463 U.S.

880, 893 n.4, 103 S.Ct. 3383, 3395 n.4 (1983), because his claims

are clearly foreclosed, we must deny CPC and decline to issue a

last-minute stay of execution.

Fundamentally, Fearance asserts two new grounds for

relief that were not conclusively rejected by this court in

Fearance v. Scott

, No. 94-10686 (5th Cir. March 21, 1995)(Fearance

I). First, he argues that the State of Texas would violate the

Eighth Amendment's prohibition of cruel and unusual punishment by

executing him after "forc[ing] him to endure over a decade on death

row." This is a claim that could and should have been asserted in

his first federal petition. Second, he raises a series of

challenges related to his mental competency for execution. We hold

th at Fearance's previous litigation strategy has barred most of

t hese claims from review on the merits, and that he is presently

mentally competent to be executed.

I. Unconstitutional Delay

In his third state habeas petitio n filed May 25, 1995,

Fearance first ra ised an Eighth Amendment based challenge to the

"extended" delay of Texas in executing his sentence of death. He

asserts that his claim that Texas has forfeited its right to

execute him because of the "inordinate delay" between his first1 This decision covers Fearance's points 3, 4 and 5 in his application

for certificate of probable cause filed in this court. We do not, however, reach

the question whether the relief he seeks for allegedly unconstit utional delay

would be precluded by Teague v. Lane , 489 U.S. 288 (1989).

3 trial in 1978 and final issuance of the Court of Criminal Appeals

mandate in July, 1989 derives from the memorandum opinion issued by

Justice Stevens in the Supreme Court's denial of certiorari in

Lackey v. Texas

, 115 S.Ct. 1421 (1995). He further buttresses the

support f or this proposition with additional historical research

and by extrapolating from the Supreme Court's order granting a stay

and vacating this court's opinion in L ackey v. Scott

, 52 F.3d 98

(5th Cir. 1995). See Lackey v. Scott , 115 S.Ct. 1818 (1995). 1

Fearance first petitioned the federal courts for relief

in 1992. In that proceeding he did not assert a claim that the

Eighth Amendment barred recourse to the death p enalty after a

defendant's extended incarceration on death row. Accordingly, the

State of Texas urges that the federal abu se-of-the-writ doctrine

precludes review of the merits of this claim.

Rule 9(b) of the Rules Governing § 2254 Habeas

Proceedings authorizes a federal court to dismiss a serial habeas

petition if failure to assert new grounds in a prior petition

amounted to an abuse of the writ. M cCleskey v. Zant

, 499 U.S. 467,

490 (1991), held that "the same standard used to determine whether

to excuse state procedural defaults should govern the determination

of inexcusable neglect in the abuse-of-the-writ context." Hence "a

claim in a serial habeas petition must be dismissed as an abuse of

the writ unless the petitioner demonstrates that there was 'cause'2 Or, in the alternative, he asserts that a "fundamental miscarriage

of justice" would result from the failure to entertain his claim on the merits.

McCleskey , 499 U.S. at 494-495. This argument is considered infra

.

4 not to have raised the claim in a previous federal habeas petition,

and 'prejudice' if the court fails to consider the new claim."

James v. Cain

, 50 F.3d 1327, 1331 (5th Cir. 1995). 2 In S elvage v.

Collins

, 975 F.2d 131, 133 (5th Cir. 1992), cert. denied

, 113 S.Ct.

2445 (1993), we concluded that a failure to raise a claim in an

earlier habeas petition may not be excused for cause "if the claim

was reasonably av ailable" at the time of the first petition. We

explicitly highlighted the Supreme Court's admonition in Engle v.

Isaac

, 456 U.S. 107, 129- 130 (1982), that claims are "reasonably

a vailable" even where their assertion would in all likelihood be

"futile." Thus, "an omission of a claim [in an earlier habeas

petition] may be excused for cause only if the question was so

novel that it lacked a reasonable basis in existing law ." James

,

50 F.3d at 1331 (quoting Selvage

, 975 F.2d at 135) (alterations in

original). A "reasonable basis" demands only that counsel has the

tools "to formulate a constitutional question." I d

. (citation

omitted). By definition, therefore, if "other defense counsel have

perceived and litigated [a] claim", cause for a serial petition is

not possible. Engle , 456 U.S. at 134.

Although Fearance attempts to lin k the advent of a

" Lackey "-claim to the date of Justice Stevens's recent memorandum,

this historical revisionism is transparently erroneous. "[W]hile

Justice Stevens' memorandum in Lackey has given prominence to the

argument that delay in carrying out the death sentence constitutes3 Interesti ngly, Richmond's petition in district court raising this

challenge was filed in 1984.

4 This opinion was eventually vacated by the panel. See 986 F.2d 1583

(9th Cir. 1993).

5 cruel and unusual punishment, the legal theory underlying the claim

is not new." M cKenzie v. Day , 1995 U.S. App. LEXIS 11196, at *9

(9th Cir. May 9, 1995) opinion adopted

, 1995 U.S. LEXIS 10893 (9th

Cir. May 9, 1995) (en banc), cert. de nied , 115 S.Ct. ___ (1995);

Turner v. Jabe

, 1995 U.S. App. LEXIS 1252 2, at *6-*7 (4th Cir.

May 24, 1995).

Indeed, the Ninth Circuit explicitly rejected Fearance's

precise claim on the merits in 1990. 3 R ichmond v. Lewis

, 948 F.2d

147 3 (9th Cir. 1990). 4 As E ngle explained, "Even those decisions

rejecting the defendant's claim, of course, show that the issue had

been perceived by other defendant s and that it was a live one in

the c ourts at the time." E ngle

, 456 U.S. at 133 n.41. In fact,

this argument had been raised dec ades before Fearance's 1992

federal petition. S ee Chessman v. Dickson

, 275 F.2d 604, 607 (9th

Cir. 1960) (application for CPC "because [petitio ner] has been

confined in a death cell for eleven and one-half years, thus he has

been subjected to cruel and unusual punishment").

Moreover, Fearance's attempt to defend Justice Stevens's

comment proves too much. In over 20 pages of briefing he endeavors

to trace the merits of a Lackey -claim back to the views of this

nation's founding fathers and the pre-revolutionary English common5 Fearance even provides "relevant passages" from Blackstone's

Commentaries on the Laws of England (5th ed. 1773).

6 Additionally, Justice Liacos of the Supreme Judicial Council of

Massachusetts argued in a 1980 concurrence that capital punishment violated the

state constitution due to the delay between sentencing and execution. D istrict

Atty. for Suffolk Dist. v. Watson

, 411 N.E.2d 1274, 1289-95 (1980) (Liacos, J.,

concurring).

7 See Turner , 1995 U.S. LEXIS 12522 at *22; McKenzie , 1995 U.S. APP.

LEXIS 11196, *14 n.11; Porter v. Singletary

, 49 F.3d 1483, 1485 (11th Cir. 1995)

(per curiam).

6 law. 5 For contemporary support, he directs attention to the

British Privy Council's landmark decision in Pratt v. Attorney

General for Ja maica , 2A.C.1, 4A11E.R.769 (P.C. 1993) (en banc),

which held that a delay between petit ioner's deaths sentence and

his execu tion violated the Jamaican constitution. We agree with

the Fourth Circuit's conclusion that if Feara nce "wishes to cite

the Privy Council he must acknowledge that in 1983 the Privy

Council rejected, over a dissent, a constitutional attack based on

the delay between a death sentence and execution." T urner

, 1995

U.S. LEXIS 12522, at *9. This alone suffices to preclude "cause"

for Fearance's omission of a cruel and unusual punishment claim

fromhis first federal habeas petition. S ee Delo v. Stokes

, 495

U.S. 320, 322 (1990) (per curiam) (prior dissenting opinions

discussing the claim refuted petitioner's argument that his claim

was novel). 6

Because Fearance is unable to establish cause, his abuse

of the writ will be excused only if he can show that federal review

of his claim is necessary to prevent a fundamental miscarriage of

justice. We reject -- as have three other circuits 7

-- Fearance's

attempt to expand "the narrow scope of the fundamental miscarriage8 But see

, McKenzie

, 1995 U.S. App. LEXIS 10893, *2 ( Lackey -type claim

a "mockery"); Turner

, 1995 U.S. App. LEXIS 12522, *22 (Luttig, concurring)

( Lackey -claim "frivolous," "sophistic" and "political game").

7 of justice exception." S awyer v. Whitley

, 112 S.Ct. 2514, 2519

( 1992). The Supreme Court has applied the "actual innocence"

exception only where a petitioner claims to be actually innocent of

the crime for which he was convicted, Murray v. Carrier , 477 U.S.

478, 496 (1986), or where a petitioner claims to be actually

innocent of his death sentence. Sawyer , 112 S.Ct. at 2519-25.

Citing Sawyer

, Fearance argues that he is now actually

innocent of the death penalty, or technically that he is

"constitutionally ineligible " as a result of the state's delay in

executing his sentence. The special S awyer -version of the

"miscarriage of justi ce" exception is limited to assertions of

error s of constitutional magnitude occurring at sentencing. The

language of Sawyer demanding the petitioner "show by clear and

convincing evidence that but for a constituti onal error, no

reasonable juror would have found him eligible for th e death

penalty under applicable state law," 112 S.Ct. at 2523, cannot

logically be exported to other "defec ts" in a death sentence.

Fearance cannot identify any error at his sentencing

-- and most

assuredly is not "actually innocent" of capital murder.

Furthermore, even assuming a valid Lackey -claim is

conceptually possible, 8 the execution of a murderer whose crime

otherwise merited the death sentence would not rise to the level of

a fundamental miscarriage of justice. S ee McKenzie

, 1995 U.S. APP.

LEXIS 11196, *18 ("[I]t is unclear to us whether, even if it were8

held that delay in the imposition of the death penalty constitutes

cruel and unusual punishment, commutation of the death penalty will

turn out to be the appropriate remedy.") According to Fearance's

own theory, he has al ready suffered the cruel and unusual

punishment occasioned by delay; executing him immediately would not

add to this type of punishment.

Finally, we resent Fearance's attempt to manipulate the

record for the purpose of presenting an "attractive" Lackey -claim

to courts that are willing to indulge such arguments. Although he

did comm it his offense in 1977 and has not yet been executed,

Fearance suggests that this "inordinat e delay [was] n ot

attributable to his own c onduct

. " (emphasis in original). In

contrast, the state trial court adopted the following chronology as

historical fact:

This offense occurred on December 23, 1977. [Fearance]

was fir st convicted and assessed the death penalty on

July 8, 1978, barely six months a fter the offense.

[Fearance's] first appeal to the Court of Criminal

Appeals asserted forty-five grounds for review and

resulted in a reversal and remand of his case for a new

trial on September 17, 1980, based upon Supre me Court

precedent, Adams v. Texas

, 448 U.S. 38 (1980), not issued

until nearly 2 years after his tria l. [Fearance]

presumably benefited from the de l ay, because he had

received a resolution of his appeal prior to issuance of

Adams, his first conviction presu mably would have been

affirmed, and he would have b een executed. [Fearance]

filed a motion for rehearing after the remand for a new

trial, which was denied on May 27, 1981.

[Fearance] received a second trial, and he was convicted

and sentenced to death for the second time of October 21,

1981, only five months after his motion for rehearing was

denied. [Fearance] thereafter appealed again to the

Court of Criminal Appeals, this time asserting twen tyfour points of error, all of which were eventually found

by the Court of Criminal Appeals to be meritless.

Significantly, [Fearance] filed a plea to the9

jurisdiction to attempt to delay the seco nd trial and

t hen contended without success in that second direct

appeal that the trial court re-tried him too soon, before

certiorari was denied on his original appeal, and that

the trial cour t therefore lacked jurisdiction. 771

S.W.2d at 495.

[Fearance] filed a motion for new trial after the second

conviction, which was denied in a bare two weeks. The

record of this second trial was not completed and filed

with the Court of Criminal Appeals until August 3, 1982,

nearly ten months after the trial, and apparently without

objection by [Fearance]. [Fearance] thereafter moved for

mu ltiple extensions to file his brief, and he did not

file the brief until April 28, 1983, one-and-one-half

years after the second jury verdict. The State

thereafter filed its reply brief to [Fearance's] twentyfour points of error in December 1983, afte r filing a

single extension motion to which [Fearan ce] lodged no

objection. The Court of Criminal Appeals thereafter held

the case for five years after which it issued a published

opinion nearly 30 pages in length addressing [Fearance's]

points of error. [Fearance] lodged no objection with the

Court of Criminal Appeals during this five year delay,

nor did he file any motions to expedite the appeal. When

the conviction was affirmed, [Feara nce] filed a motion

for rehearing, which was denied in approximately two

months' time. [Fearance] thereafter petitioned the

Supreme Court for writ of certiorari, which was denied

July 3, 1989.

The Court of Criminal Appeals issued its mandate on

July 6, 1989, after which, on July 31, 1989, the trial

court set an execution date of Oc tober 18, 1989.

[Fearance's] counsel filed the first application for

state habeas corpus on October 3, 1989, over three months

after certiorari was denied, over two months after the

execution date was set, and only two weeks prior to the

October 18, 1989 execution date. The trial court was

obliged to modify the execution date in order to appoint

experts and hold an evidentiary hearing on [Fearance's]

claims of mental disease and incompetence. After a

protracted hearing, an amended application by [Fearance]

filed January 18, 1990, and testimony by n umerous

experts, see this Court's Findings of F act and

Conclusions of Law, cause no. W81-11256-K(A), this Court

found tha t there was no definitive evidence of mental

disease. This Court also found that [Fearance] had been

found by mental health experts to be aware that

incompetence claims could delay his execution and to be

"malingering." This Court issued its findings in

November, 1990, after [Fearance] filed his brief with the10

Court on May 11, 1990, asserting competen ce and Penry

claims. The Court of Criminal Appeals thereafter held

the case for resolution of these claims for approximately

ten months, after staying the January 1991 execution

date, and again [Fearance] filed no objection t o the

delay, nor did he file any motions to expedite review of

the writ application.

[Fearance] thereafter filed a second state habeas

application on January 16, 1992, over four months after

his first application was denied by the Court of Criminal

Appeals. The trial court issued its findings on this

application 33 days after it was filed, and the Court of

Criminal Appeals denied the application two weeks later.

The trial court having set a new execution date of

March 20, 1992, [ Fearance] filed a petition for habeas

corpus with the U.S. District Court, which was denied by

the federal district court on July 6, 1994, again with no complaint by [Fearance] regarding delay in resolving the

appeal. On March 21, 1995, the Fifth Circuit Court of

Appeals denied [Fearance] a certificate of probable cause to appeal the federal district court's decision, and on

March 31, 1995, this Court set the current execution date

of June 20, 1995, [Fearance] filed a motion to delay the

current execution date in order to allow him more time to

prepare a petition for writ of certiorari on the federal

habeas corpus petition, although the deadline for filing

that certiorari petition is June 19, 1995, prior to the

execution date. Only after this Court denied

[Fearance's] mo tion to further delay his execution did

[Fearance's] attorneys announce their intention to file

this application for habeas corpus, and the application

was in fact not filed until three weeks later, less than

one month before the current execution date, along with

a motion for evidentiary hearing and for re-appointment

of the same mental health expert who examined [Fearance]

five years ago. This application was the first pleading

in nearly seventeen years of appeals in which [Fearance]

has raised his current claim

- - that his appeal has

lasted too long.

This course of events is supported by the record, has not been

disputed by Fearance, and m ust be presumed correct on federal

habeas review. 28 U.S.C. § 2254(d). What it shows is that

Fearance was not the unwilling victim of a B leak House

- like

procedural sy stem hopelessly bogged down; at every turn, he,11

wit hout complaining about the accumulating period on death row,

sought extensions of time, hearings and reconsiderations.

Moreover, Fearance's current death sentence was not

assessed until October 1981, at the conclusion of his second trial.

He never faced an execution date until October 1989, after his

second conviction was affirmed, because Texas state law precluded

the trial court from setting an execution date while his direct

appeal was pending. S ee Tex. C ode Crim. Proc. Ann. art. 42.04

("When a defendant is sentenced to death, no date shall be set for

the execution until a fter the receipt by the clerk of the trial

court of the mandate of affirmance of the court of criminal

appeals.).

II.

Fearance also argues that his application for CPC should

be granted because, under Ford v. Wainwright

, 477 U.S. 399, 106

S.Ct. 2595 (1986), he is presently incompetent to be executed.

(Claims I and 2 in Fearance's application for CPC in this court) To

the extent that his assorted challenges rest on objections to

forced medication, we hold them to be procedurally barred from our

review. We will, however, consider Fearance's assertion that his

present mental illness renders him constitutionally unfit for the

death penalty.

A. Present Competence

Nonetheless, our settled precedent compels us to conclude

that no constitutional barrier exists to executing the petitioner

in his present state. Indeed, this was the conclusion reached by9 In his first appeal from the denial of federal habeas relief,

Fearance specifically declined to challenge the court's rejection

of his Ford v. Wainwright claim. See Fearance I , at 18 n.8.

10 We do not mean to imply that we accept the Ninth Circuit's opinion

in Campbell v. Blodgett , 997 F.2d 512, 524 (9th Cir. 1993).

12 the district judge in Fearance's initial round of federal habeas

corpus review. See Fearance v. Collins , No. 3:92-CV-0488-X (N.D.

Tex. July 6, 1994). Of course, this court would normally refuse to

revisit claims raised in a prior federal petition absent "cause and

prejudice." 9 Because F ord claims, however, concern the

petitioner's immediate mental state, neither this court nor the

Supreme Court has definitively decided whether relief would

appropriately be denied on either abuse of the writ or successive

petition grounds. S ee Ba rnard v. Collins , 13 F.3d 871, 878 (5th

Cir. 1994). 10

This does not mean that the federal district court should

have held an evidentiary hearing on Fearance's sanity. Instead,

the state habeas court concluded a hearing vis à vis petitioner's

competence to be executed within the last three weeks. "This court

has previously determined that a state court's finding of

competency to be execute d is entitled to a presumption of

correctness under § 2254(d)." B arnard

, 13 F.3d at 877 (citation

omitted).

Although Fearance contends that the state court's refusal

to appoint a forensic expert destroys this presumption, he fails to

provide a ny authority that such a decision impels the conclusion

that the state court did not "afford a full and fair hearing." To13

the contrary, the record amply supports the trial court's

conclusion that Fearance meets the operative definition of

competency for purpose of execution.

In Lowenfield v. Butler

, 843 F.2d 183, 187 (5th Cir.

1987), this court adopted the standard enunciated by Justice Powell

as the Ford crite rion. Accordingly, all we require is "that a

person know the fact of his impending execution and the reason for

it." Barnard , 13 F.3d at 876 n.2 (citation omitted). Fearance's

own testimony on June 2, 1995, in the state court is sufficient to

meet this threshold. Petitioner testified that he knew the date

scheduled for his execution, the date of the offense for which he

was on death row, that he was sentenced to die for murdering Larry

Faircloth, and that the murder was alleged to have occurred during

the course of a burglary. See Transcript of State Habeas Hearing

at 57-58, 70-72.

In additi on to this presumption of correctness, the federal

habeas court, with a petitioner who was either judged competent to

stand trial or did not raise a serious issue for the trial court of

his mental capacity, may "presume that [Fearance] remains sane at

the time sentence is carried out, and may require a substantial

threshold showing of insanity merely to trigger the hearing

process." L owenfield

, 843 F.2d at 187, citing Ford v. Wainwright

,

477 U.S. at 425-426 (Powell, J.,c oncurring). This court

specifically held that a doctor's "conclusion" that the petitioner

"suffer[s] from paranoid schizophrenia falls woefully short of a

finding that [petitioner] is so deranged that he is unaware that he1 1 See Transcript of May 30

- June 2, 1995 State Habeas Hearing

at 10, 29, 80-81.

14 is about to be put to death as a result of his earlier conviction

and sentence for murder."

There was also no reason for the federal district court to

have appointed a psychiatrist or ordered an independent psychiatric

examination, pursuant to 21 U.S.C. [sec.] 848(q)(B)(9). K eeney v.

Tamayo-Reyes

, 112 S.Ct. 1715, 1720-21 (1992), demands that Fearance

establish "cause and prejudice" for his failure to develop in state

court the facts necessary to support his federal petition. Both

prongs present an obstacle for Fearance; prejudice would be

difficult -- if not impossible -- to establish where petitioner's

own testimony evinces awareness surpassing our circuit's competency

test, and cause is lacking where petitioner does not avail himself

of the express opportunity to sub poena prison medical health

professionals who had treated Fearance. In state court, the judge

repeatedly admonished Fearance's counsel that he could subpoena TDC

doctors who have handled Fearance's psychiatric care for over ten

y ears. 1 1 The state court did, however, admit and consider the

voluminous TDC medical records concerning Fearance's care.

Further, it borders on disingenuousness for Fearance to assert

in a motion filed less than one month before his scheduled

execution that because he is an indigent he is entitled to a courtappointed psychiatric evaluation, and because the court denied his

motion, he could not put on his chosen expert. The Texas Resource

Center was established to assist prisoners sentenced to death in12 Significa ntly, there is a serious dispute over whether Fearance has

been medicated inv oluntarily. Apparently, Fearance has not objected to being

medicated for treatme n t in more than six months. See Medical Records, Attached

Exhibit to State Habeas Hearing. Furthermore, Fearance has on occasion requested

medication, and his only recent complaints have focused on his preference for the

Haldol pills rather than injections. In response to his complaints, he has been

switched to Haldol liquid which he takes orally. Most importantly, Fearance, albeit

voicing objections to the form of medication, ultimately acquiesced to the

medication in each instance. See State Court Transcript at 61-63, 68. The state

court made no specific written finding, however, on this question.

15 Texas. Although the bulk of its funding is from the federal

government, it is not prohibited from spending non-federal money to

assist prisone rs in state habeas proceedings. According to its

1993 Annual Report, the Resource Center received about $570,000 in

that year from non-federal sources. The funding levels have not

declined. Most of the 400 Texas death row inmates are not at any

given time actively litigating their cases. Surely some of the

Center's non-federal money was available for an updated psychiatric

report of Dr. Crowder in support of Fearance's motion. S ee

Petitioner's Offer of Proof, State Habeas Hearing at 10, 79-83.

Keeney barred the federal distric t court from conducting another

evidentiary hearing.

B. Forced Medication

Fearance's sudden assertion that his execution is

foreclosed be cause of "his forced medication with a powerful

antipsychotic drug" stands on wholly different grounds. 12

S pecifically, he argues to this court that it should issue a CPC

because the question of whether forced medication to induce or

ensure competence for execution has not been directly addressed by13 He directs our attentio n to State v. Penry , 610 So.2d 746, 755 (La.

1992) (per Dennis, J.) and Singleton v. State , 437 S.E.2d 53, 60-61 (S.C. 1993).

14 Obviously, no such claim was included in his first state habeas

petition filed originally in 1989, and amended on January 18, 1990.

15 The district court also denied reli ef on the basis that the medical

records indicate that Fearance is medicated for his own therapeutic purposes and to

prevent him from presenting a danger to himself and to others. R iggins v. Nevada

, 112 S.Ct. 1810, 1815 (1992 ), permits an inmate to be treated with antipsychotic

drugs where there is a dete rmination that "the inmate is dangerous to himself or

others and the treatment is in the inmate's medical interest."

16 the United States Supreme Court. Fearance acknowledges that the

Court has considered related issues of forcible medication in

Washington v. Harper , 499 U.S. 210 (1990), and Riggins v. Nevada

,

112 S. Ct. 1810 (1992), and suggests that two state Supreme Court

decisions indicate that the question is debatable among jurists of

reason. 13 (Notably, both cases rest on privacy provisions in the

state constitution.)

Albeit an interesting and important issue, Fearance has

no vehicle to present it for our determination at this last moment.

Although he did include the issue in his latest, i.e.

, third,

collateral petition in state court filed on May 25, 1995, he

omitted any similar concern from his second state petition filed in

1992. 14 Not surprisingly, the state trial court faced with

Fearance's third application for writ of habeas corpus found that

the "claims advanced in this application could

-- and should

--

have been litigated

. . . in the first or second application for

writ of habeas corpus." The court explicitly found that Fearance

"abused the habeas corpus process by raising these claims in a

dilatory fashion," and, in the alternative, 15 refused to consider

these new contentions. The Court of Criminal Appeals denied relief1 6 That the state court addressed the abuse of the writ in the alternative

does not alter the analysis. S ee Coleman

, 111 S. Ct. at 2560 (reject i ng petitioner's assertion that the federal review of his claims was not barred if "the

Court first considered the merits of his federal claims, and applied the procedural

bar only after determining that doing so would not abridge one of Coleman's

constitutional rights").

17 The court recognized a "cause" exception.

17 and in a brief order adopted all of the conclusions of th e state

district court.

A ccordingly, this court is barred from reviewing the

merits of Fearance's forced medicatio n claims: The adequate and

independent state ground doctrine "bar[s] federal habeas when a

state court decline[s] to address a prisoner's federal claims

because the pri soner had failed to meet a state procedural

requirement." C oleman v. Thompson

, 111 S. Ct. 2546, 2554 (1991). 16

To be sure, this court has stated that in the past Texas

courts have not regularly and strictly applied abuse-of-the-w rit

rules. Lowe v. Scott , 48 F.3d 873, 876 (5th Cir. 1995).

Nevertheless, in Ex Parte Barber

, 879 S.W.2d 889, 892 n.1 (Tex. Cr.

App. 1994), cert. denied , 115 S.Ct. 739 (1995), the highest court

of the State of Texas announced that it would as a "rule" dismiss

as abuse of the writ "an applicant for a subsequent writ of habeas

corpus rais[ing] issues that existed at the time of his first

writ." 17 Consequently, when the state district court dismissed an

issue raised in Fearance's third petition that was not raised in

his earlier petition it was no longer acting with any discretion.

After Barber , dismissals of Texas habeas petitions as an abuse of

the writ should create a procedural bar under the Coleman standard.18 We also note that this claim was not included in his prior federal

habeas petition either.

18 Thus, Fearanc e must establish "cause" and "prejudice" from our

failure to conside r his claim. 1 8 C oleman

, 111 S. Ct. 2565 (cause

a nd prejudice standard "uniformly" applicable to all independent

and adequate state procedural defaults).

Recognizing this predicament, Fearance notes that an

exception to the abuse of the writ doctrine exists if the claim

asserted is novel. Reed v. Ross , 468 U.S. 1 (1984). To prevail,

Fearance must

-- at least

-- pl ausibly argue that this type of

constitutional attack was not reasonably available in 1992 when he

filed his second state habeas petition. And, indeed, he does urge

this notion.

That the United States Supreme Court granted certiorari

on this forcible medication claim in 1990 undermines the

respectability of such a proposition. S ee Perry v. Louisiana

, 494

U.S. 1015 (1990) (trial court ordered administration of

antipsychotic drugs to the prisoner for purposes of execution).

Even without such a dramatic siren, reasonably diligent

counsel have long had the tools to construct this argument. As the

Louisiana Supreme Court explained in 1992, "For nearly a century it

has been well-settled in Louisiana that one who has been convicted

of a capi tal crime and sentenced to suffer the penalty of death,

and who thereafter becomes insane, cannot be put to death while in

that condition." Perry , 610 So.Ct. 750 (citing cases dating back

to 1897).19

Moreover, Fearance cannot legitimately assert that the facts

underlying his forced medication claims are novel as of the filing

of his third s tate petition. His mental health issue was first

developed in state habeas hearings during 1990. Even at that time,

the prison medical records showed he had been medicated with Haldol

throughout at least 1988 and 1989. Typical of these records is one

dated November 18, 1988, which reports that he had repeated

admissions to the psychiatric u nit for treatment for psychotic

relapses "secondary to medication non-complianc e." He suffered

from "periodic poor medication compliance." S ee Appendix to Third

State Court Petition for Habeas Relief, Exhibit B, "Psychi atric

Records from TDCJ," at 136; S ee also id.

, e.g., pp. 122, 124, 135,

140-141, 189-91, 200. There is no question that a claim for

forcible medication could have arisen from these treatments before

his first state hearing, and certainly prior to his second state

petition in 1992.

III.

For the foreg oing reasons, Fearance's petition for CPC and

motion for stay of execution are DENIED.