UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 96-10027

____________

AARON LEE FULLER,

Petitioner - Appellant,

versus

GARY JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent - Appellee.

Appeal from the United States District Court

for the Northern District of Texas

May 30, 1997

Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Aaron Lee Fuller, sentenced to death for the robbery, murder,

and sexual assault of Loretta Stephens, app eals the district

court’s denial of his petition for writ of hab eas corpus. We

affirm.

I

The contemptible facts of thi s death penalty case need not

detain us long. Most of the details are set forth in F uller v.

State

, 829 S.W.2d 191 (Tex. Crim. App. 1992) (en banc), cert.-2-

denied 508 U .S. 941, 113 S. Ct. 2418, 124 L. Ed. 2d 640 (1993).

Loretta Stephens was beaten to death in her hom e during a theft,

then sexually assaulted and dumped in the tall weeds on the side of

Highway 87 north of Lamesa, Texas. During questioning by police,

petitioner Aaron Fuller offered several different accounts of his

involvement, some impli cating one Juan Gomez. Fuller eventually

confessed to murdering and sexually assau lting Ms. Stephens by

himself, then disposing of the body without Gomez’s knowledge.

When it became clear at trial that the state was seeking the

death penalty, Fuller recanted his confession, seeking to implicate

Gomez once again. Fuller’s theory at trial was that Gomez beat Ms.

Stephens to death with a six-inch metal pipe while Fuller went

through her purse in another room. At the guilt/innocence phase of

trial, prosecutors refuted this theory with autopsy evidence from

Dr. Ralph Erdmann showing that Ms. Stephens’s injuries were more

con sistent with blows from a fist than from a pipe. The State

introduced physical evidence from Ms. Stephens’s house tending to

show that Fuller committed both crimes. The jury found Fuller

guilty of capital murder.

At the punishment phase of the trial, the State i ntroduced

evidence as to Fuller’s future dangerousness, including testimony

by psychiatrist James Grigson that Full er would represent a

continuing threat to society. The State also introduced evidence

that Fuller belonged to the Aryan Brotherhood, a violent neo-nazi-3-

prison gang. The jury sentenced Fuller to death.

Different courts stayed Fuller’s execution while he exhausted

both direct appeals and state petitions for habeas corpus. He

petitioned the federal dist rict court for habeas corpus relief

under 28 U.S.C. § 2254, and the district court denied his petition,

vacated its stay of execution, and denied a certificate of probable

cause.

Fuller now appeals, asserting five challenges to the

constitutionality of his death sentence: (1) the state introduced

false testimony re garding Ms. Stephens’s autopsy; (2) the state

introduced false testimony regarding future dangerousness; (3) the

state did not prove that Fuller was a member of, or shared beliefs

with, the Aryan Brotherhood prison gang, and therefore could not

inject evidence of the group’s beliefs into his murder trial; (4)

the state improperly excluded a juror based on her views about the

death penalty; and (5) the court wrongly refused his request for

state-sponsored expert assistance.

II

Thirteen days after Fuller filed his ap pellate brief, the

Preside nt signed into law the Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”).

This new law modifies the statutes governing habeas corpus cases,

providing for a one-year statut e of limitations, requiring a

“certificate of a ppealability” for circuit court review, and

limiting successive habeas petitions.-4-

The AEDPA amends 28 U.S.C. § 2253, which had imposed a

jurisdictional requirement that a federal court issue a certificate

of probable cause (“CPC”) before a circuit court heard a habeas

appeal. Section 2253, as amended, requires a district or circuit

court to grant a “certificate of appealability” (“COA”), which must

indicate which issues in a habeas appeal make a substantial showing

of the denial of a constitutional right. We interpret Fuller’s

request for a CPC as an application for COA. D rinkard v. Johnson

,

97 F.3d 751, 756 (5th Cir. 1996), cert. denied , ___ U.S. ___, 117

S. Ct. 1114, ___ L. Ed. 2d. ___ (1997). Accord: Herrera v. United

States

, 96 F.3d 1010, 1012 (7th Cir. 1996); Reyes v. Keane

, 90 F.3d

676, 680 (2d Cir. 1996).

We grant Fuller’s COA on four issues because he has made a

substantial showing of the denial of a constitutional right in

each. However, we deny COA on Fuller’s challenge to the district

court’s denial of state-sponsored expert assistance on his habeas

petition. We resolve doubts about whether to grant a COA in favor

of the petitioner, see Buxton v. Col lins , 925 F.2d 816, 819 (5th

Cir.), cert. denied

, 498 U.S. 1128, 111 S. Ct. 1095, 112 L. Ed. 2d

1197 (1991), and we may properly consider the severity of the

penalty in making this determination. S ee Barefoot v. Estelle

, 463

U.S. 880, 893 n.4, 103 S. Ct. 3383, 3394 n.4, 77 L. Ed. 2d 1090

(1983); Buxton

, 925 F.2d at 819. On the first four issues, Fuller

raises questions that are debatable among jurists of reason, and he-5-

has made an adequate showing to proceed further. C lark v. Collins

,

956 F.2d 68, 71 (5th Cir.), cert. denied

, 503 U.S. 901, 112 S. Ct.

1254, 117 L. Ed. 2d 485 (1992).

COA notwithstanding, the government argues that 28 U.S.C.

§ 2254(e)(2), as amended by AEDPA section 104, precludes our review

of most of Fuller’s first and second chal lenges. Amended

section 2254(e)(2) provides that:

If the applicant has failed to develop the factual basis

of a claim in State court proc eedings, the court shall

not hold an evidentiary hearing on the claim unless the

applicant shows that ))

(A) the claim relies on ))

(i) a new rule of co nstitutional law, made

retroactive to cases on collateral review b y the

Supreme Court, that was previously unavailable; or

(ii) a factua l predicate that could not have

been previously discovered through the exercise of

due diligence; and

(B) the facts underlying the claim would be

sufficient to establish by clear and convincing

evidence that but for constitutional error, no

reasonable factfinder would have found the

applicant guilty of the underlying offense.

By its own terms, amended sectio n 2254(e)(2) only curtails

eviden tiary hearings, not appellate review of cases, and in any

event, the district court conducted an evidentiary hearing on these

issues more than three months before the President signed the AEDPA

into law. Therefore we find that the amended provision of

section 2254(e)(2) does not affect our review of the merits, to

which we now turn.

III

A-6-

Fuller first claims that coroner Ralph Erdmann failed to

perform the scientific procedures necessa ry to disprove Fuller’s

alternative theory that Gomez beat Ms. Stephens to death with a

pipe, and that Dr. Erdmann’s testimony was therefore fraudulent.

At trial Dr. Erdmann testi fied that the injuries Ms. Stephens

sustained were more consistent with infliction by fist than by

pipe. Fuller introduces for the first time on habeas appeal the

affidavit of Dr. Sparks Veasey, who claims that it is impossible to

make that determination without stripping the dura and brain matter

from the base of the skull to det ermine whether or not skull

fractures were present. Dr. Veasey also contends that, based on

photos of the autopsy, Dr. Erdmann did not strip the dura.

Dr. Erdmann also testified that he did not take a vaginal swab

of the deceased to detect or anal yze any semen because, he said,

she had bee n dead too long to do a proper analysis. Dr. Erdmann

testified that after eight hours sperm becomes undetectable. Dr.

Veasey, however, testified in t he evidentiary hearing that sperm

would have been detectable well after eight hours following death.

Fuller contends that Dr. Erdmann’s testimony on both counts is

false and misleading and that the State’s use of such false

testimony violates the Fifth, Eighth, and Fourteenth Amendments of

the Constitution.

To establish a due process violation based on the government’s

use of false or misleading testimony, the defendant must show (1)

that the wi tness’s testimony was actually false, (2) that the-7-

testimony was material, and ( 3) that the prosecution knew the

witness’s testimony was false. Giglio v. United States , 405 U.S.

150, 153-54, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972); M ay v.

Collins

, 955 F.2d 299, 315 (5th Cir.), cert. denied

, 504 U.S. 901,

112 S. Ct. 1925, 118 L. Ed. 2d 533 (1992). Fuller has failed to

meet this burden.

Fuller has not shown that Dr. Erdmann’s testimony abou t the

cause of death was actually false. Dr. Erdmann testified that the

bruises and cuts on the face of the deceased were more consistent

with blows from fists than with blows from a pipe. Fuller had an

opportunity at trial to challenge whether t he autopsy provided

sufficient evidence to re ach Dr. Erdmann’s conclusions, and he

failed to do so. To dispute Dr. Erdmann’s conclusion is not to

prove that it is “fals e.” Fuller has shown nothing about Dr.

Erdmann’s opinion to be actually false; he has only challenged the

methods by which Erdmann reached those con clusions. The proper

place for such a challenge is in cross-examination, not on

collateral review.

Dr. Erdmann’s statement at trial about the dissipation of

semen evidence after eight hours may or may not be false. Even if

Dr. Erdmann were incorrect, however, Fuller has not shown that Dr.

Erd mann could have acquired semen evidence when police recovered

Ms. Stephens’s body, approximately 100 hours after the assault took

place. So even if Dr. Erdmann were incorrect, Fuller has not shown-8-

that Dr. Erdmann could have found exculpatory evidence material to

his case. Additionally, Fuller has not demonstrated that the

prosecution knew of the alleged falsity of Dr. Erdmann’s claim

about semen evidence. Therefore, Fuller has failed to show that he

was denied a fair trial because of false and misleading testimony

by Dr. Erdmann.

Fuller also asserts fleetingly that the introduction of Dr.

Erdmann’s “materially inaccurate” evidence violates his Eighth

Amendment rights under Johnson v. Mississippi

, 486 U.S. 578, 108 S.

Ct. 1981, 100 L. Ed. 2d 575 (1988). Because Fuller has not

adequately shown Dr. Erdmann’s testimony to be false or material,

Fuller’s Eighth Amendment claim must fail.

B

Fuller next claims that the testimony of psychiatrist Dr.

James P. Grigson regarding Fu ller’s future dangerousness was

materially false, denying Fuller a fair trial under the Fifth,

Sixth, Eighth and Fourteenth Amendments. At the sentencing phase

of Fuller’s trial, Dr. Grigson testified for the prosecution that,

i n his opinion, “there is absolutely no question, no doubt

whatsoever” that Fuller would be dangerous in the future.

Labeled “Doctor Death” by some in the press, Dr. Grigson has

been the target of media scrutiny. He has been profiled negatively

in Vanity Fair and The Washington Post . The American Psychiatric

Association has reprimanded him twice for his testimony, and it has-9-

filed an amicus curiae brief with the Supreme Court urging the

Court to prohibit his predictions because the association finds the

predictions unreliable. Fuller also points to academic criticism

of Dr. Grigson’s predictions, in particular an article co-written

by Dr. James Marquart in Law and Society Review

.

Fuller claims that, because Dr. Grigson was aware of much of

this cr iticism, he lied to the court when he testified as to the

certainty of his predictions. Fuller also claims that the State

knew or should have known that Dr. Grigson was unreliable and that

his testimony as to the certainty of his predictions was false.

None of the criticism, by the media, scholars, or government

agents, shows that Dr. Grigson lied to the court in this case. The

defense could certainly use this outside criticism to impeach Dr.

Grigson, but the criticism goes to the sufficiency of the evidence,

a jury question, not the truth of his testimony. Fuller does not

claim that Dr. Grigson lied about his own opinion, and Dr. Grigson

never c laimed at trial to be infallible. As we have already

stated, Giglio requires that, in order to establish a due process

violation for the government’s use of false or misleading

testimony, the defendant must show that the witness’s testimony is

actually false, material, and that the government k new the

testimony was false. G iglio

, 405 U.S. at 153-54, 92 S. Ct. at 766.

Here, Fuller has failed to show that Dr. Grigson’s opinions about

future dangerousness, or about his own credibility, were actually-10-

false, and therefore Fuller’s due process claim fails.

C

Fuller contends that he was unconstitutionally prejudiced when

the state introduced, as ev idence of his future dangerousness,

testimony that he was a member of the Aryan Brotherhood prison gang

as well as testimony about the gang and its beliefs. At trial, the

State introduced the testimony of one Royce Smithey, who testified

that the gang was a white supremacist, neo-nazi-type gang that

routinely dealt in violence, drug dealing, protection rackets,

prostitution, and fear. Fuller asserts that the prosecution failed

to show that he was a member of the gang or shared its beliefs.

Fuller also argues that in any event the use of this evidence as an

aggravating factor supporting the death penalty violated his First

Amendment rights of freedom of belief and association.

The issue in this case is not whether the Aryan Brotherhood

evidence was relevant to Fuller’s future dangerousness in the

sentencing phase, nor whether the evidence was more probative than

prejudicial. Those are not constitutional issues but evidentiary

issues, properly considered under the Texas Rules of Criminal

Evidence on direct appeal. The fact that irrelevant evidence may

have been admitted at trial does not rise to constitutional error.

Romano v. Oklahoma

, 512 U.S. 1,

___, 114 S. Ct. 2004, 2011, 129 L.

Ed. 2d 1 (1994). The jurisdiction of this court on habeas review

of a state prosecution is limited to constitutional issues under 28-11-

U.S.C. § 2254(d)(1), as amended by the AEDPA.

The issue here is whether the State may use Fuller’s

constitutionally pr otected association as evidence of his future

dangerousness. In D awson v. Delaware

, the Supreme Court held that,

although the First Amendment protects an individual’s right to join

groups and associate with others, the Constitution does not erect

a per se barrier to the admission of evidence concerning beliefs

and associations at sentencing. D awson

, 503 U.S. 159, 161, 163,

112 S. Ct. 1093, 1096, 1097, 117 L. Ed. 2d 309 (1992). In that

case, the Court held that, where both parties stipulated to the

defendant’s membership in the Aryan Brotherhood priso n gang, but

the prosecution offered no evidence of the gang’s violent

tendencie s relevant to sentencing, the use of that associational

evidence violated the defendant’s First Amendment rights.

The Dawson court qualified its holding with an important

caveat, however:

Because the prosecu tion did not prove that the Aryan

Brotherhood had committed any unlawful or violent acts,

or had even endors ed such acts, the Aryan Brotherhood

evidence was also not releva nt to help prove any

aggravating circumsta nce. In many cases, for example,

associational evidence might serve a legitimate purpose

in showing that a defendant represents a future danger to

society.

Id . at 166, 112 S. Ct. at 1098. Fuller’s case is distinguishable

from Dawson on exactly this point. The State in Fuller’s case did

not merely stipulate that Fuller was in the Aryan Brotherhood. It

introduced evide nce that Fuller was a member of a gang that had-12-

committed unlawful or violent acts, including homicides, multiple

stabbings, drug dealing, and aggravated assaults. A reasonable

juror could conclude that membership in such a gang is relevant to

future dangerousness. D awson established that a state may not

employ a defendant’s abstract beliefs at a sentencing hearing when

those beliefs are not relevant to the issue being tried. In this

case, however, Texas did not violate Fuller’s First Amendment

rights because it introduced relevant evidence of his future

dangerousness. The fact that Fuller was within his rights in

joining the g ang does not bar the use of relevant evidence at

trial.

D

Fuller next asserts that the trial court improperly excluded

for cause a qualified venire member based on her views on capital

punishment. During voir dire, venire member Jonnie White

expressed reservations about imposing the death penalty unless the

defendant was a repeat offender. The colloquy between the district

attorney and Ms. White was as follows:

“[MR. SMITH, the district attorney]: If, after

considering the evidence, you are convinced beyond

a reasonable doubt that he is guilty of capital

murder, then you as a j uror, along with the other

eleven, will then decide the answers to some

questions. Basically two questions. If you answer

those two questions yes, then he will be put to

death. If you answer either one of them no, or

both no, he will serve a life sentenc e in the

penitentiary. But it will be one or the other, if

he is found guilty of capital murder.

“[MS. WHITE]: Well, could I explain my answer on the-13- question, or should I just wait for your question.

“[MR. SMITH]: Go on and explain.

“[MS. WHITE]: About capital murder. Because my feeling

about capital murder has always )) I don’t like taking

a life for a life unless it is a case of a serial

murderer who has murdered. So, I don’t know what

my feelings would be about a first time offense of

capital murder.

“[MR. SMITH]: You understand that our law provides that

there are certain crimes that are classified as

capital murder.

“[MS. WHITE]: I know.

“[MR. SMITH]: And that ))

“[MS. WHITE]: It doesn’t matter how many murders; if it

is one murder or ten, or more?

“[MR. SMITH]: Yes, ma’am.

“[MS. WHITE]: I understand.

“[MR. SMITH]: Are you saying that in your opinion that

you could only consider the death penalty in a

serial murder type case?

“[MS. WHITE]: Yes. That is what I am saying.

“[MR. SMITH]: And not in any other type case?

“[MS. WHITE]: Well, when I say serial, I am talking

about )) if that includes, you know, two or more. I

don’t know where you draw the line. I would draw

it at two.

“[MR. SMITH]: Two previous killings?

“[MS. WHITE]: Yes. I mean, more than one.

“[MR. SMITH]: Is that the only situation that you could

consider it?

“[MS. WHITE]: I think that’s ))

“[MR. SMITH]: I am not trying to ) ) You are entitled to

your opinion, absolutely. In your questionnaire

you stated that in case of repeat offender s only.

You used the word only. Is that your feeling about

it, that those are the type cases, only?

“[MS. WHITE]: I don’t know the answer to that. I think

it would, but )) I f one murder is )) I know )) If it is

proven definitely, beyond a reasonable doubt, I

can’t )) I don’t be lieve that I could ) ) I could vote

for a death penalty if it was for o ne )) t he first

offense.

“[MR. SMITH]: Is that regardless of the facts of the

case, whatever the facts might be?

“[M S. WHITE]: Well, if you are talking about someone

who just kills in cold blood, I mean just )) or if it

is )) or if it is accidental or under )) under )) there

are all kinds of circu mstances. Are you talking

about premeditated murder, or something like that,-14- where someone plans someone’s death?

“[MR. SMITH]: Well, I am trying to determine ))

“[MS. WHITE]: Where I draw the line?

“[MR. SMITH]: Yes, ma’am. Where you draw the line.

“[MS. WHITE]: Well, I think the only way I would know

where I would draw the line, if I was just faced

with it immediately, and I had to rely on my own

judgment and instinct, I guess, too. The way I

feel now, I )) I’ve never been in court before. I’ve

never served on a jury. I have no ) ) I don’t have any

idea at all how I will )) I kno w that I could be a

responsible citizen. But the way I feel now, if I

were asked to vote for a death penalty for someone

who had committed one crime, even capital murder, I

would go with my instincts to say that I would say

for, maybe, life for imprisonment or a long

sentence in prison. I certainly would want a

punishment. But I don’t think this ))

“[MR. SMITH] : I submit, Your Honor, that the juror

should be excused.”

After timely objection by the defense, the Court qu estioned Ms.

White further.

“THE COURT: You feel, Jonnie, as you sit here now, that

you couldn’t give the death penalty except where a

person had been convicted of murder before, or that

kind of crime before?

“[MS. WHITE]: Yes. That’s the way that I feel.

“THE COURT: All right. I am going to excuse her.”

Where a party seeks to exclude a venire member because of

bias, that party must d emonstrate through questioning that the

potential juror lacks impartiality. W ainright v. Witt , 469 U.S.

412, 424, 105 S. Ct. 844, 852, 83 L. Ed. 2d 841 (1985) (citing

Reynolds v. United States

, 98 U.S. (8 Otto) 145, 157, 25 L. Ed. 244

(1878)). Opposition to capital punishment, in itself, is not

sufficient cause for a judge to exclude a member of the jury pool.

As the Supreme Court stated in Lockhart v. McCree :-15-

[N] ot all who oppose the death penalty are subject to

removal fo r cause in capital cases; those who firmly

believe that the death penalty is unjust may nevertheless

serve as jurors in capital cases so long as they state

clearly that they are willing to temporarily set aside

their own beliefs in deference to the rule of law.

476 U.S. 162, 176, 106 S. Ct. 1758, 1766, 90 L. Ed. 2d 137 (1986).

The proper standard for determining when a court may exclude

a venire member for cause because of her views on capital

punishment is “whether the juror’s views would ‘prev ent or

substantially impair the performance of [her] duties as a juror in

accordance with [her] instructi ons and [her] oath.’” W itt

, 469

U.S. at 424, 105 S. Ct. at 852 (quoting Adams v. Texas

, 448 U.S.

38, 45, 100 S. Ct. 2521, 2526, 65 L. Ed. 2d 581 (1980)). Where the

court find s that even one juror was improperly excluded, the

defendant is entitled to a new sentencing, because the right to an

impartial adjudication is “‘so basic to a fair trial that [its]

infraction can never be treated as harmless error.’” G ray v.

Mississippi

, 481 U.S. 648, 668, 107 S. Ct. 2045, 2057, 95 L. Ed. 2d

622 (1987) (plurality opinion); see also Davis v. Georgia

, 429 U.S.

122, 123, 97 S. Ct. 399, 400, 50 L. Ed. 2d 339 (1976) (per curiam)

(reman ding capital case for reconsideration where a single juror

was erroneously removed for bias).

The district attorney and the court established that Ms. White

personally believed that only mult iple murders merited capital

punishment. Unfortunately, neither determined clearly that this

view would impair her in answering the two special issues that1 A more carefully crafted question and an answer clearly

demonstrating bias may be found excerpted in our holding in Riles

v. McCotter

, in which the following exchange took place during voir

dire:

COURT:

. . . On the one hand, you tell me that you have this

religious scruple against the infliction of death as

punishment for crime. So, what I am asking you is, if that is

the case, would the fact that the death penalty is a

possibility affect the way you would answer any question

involved in this lawsuit, up to and including, let’s say, on

the guilt or innocence ) ) might you find it murder instead of

capital murder so you wouldn’t be faced with the death

penalty?

MR. NIX: I am afraid I would have to say it would influence my way

of thinking.

Riles v. McCotter , 799 F.2d 947, 949 n.2 (5th Cir. 1986).

-16- determine sentencing in Texas capital cases. The relevant question

here is whether Ms. White could set aside her personal opinions and

apply the law, or whether those beliefs would distort her view of

the facts or alter her answers to the two special issues.

Ms. White stated several times her own views about what she

considered the proper level of punishment for first-time murderers.

But she also stated that she wanted to be a responsible citizen,

that she could fo llow the law as the judge stated it, and that

strong feelings of civic duty would make her do her best to render

an impartial verdict. The district attorney’s questions about

where Ms. White would “draw the line” if she we re the Texas

legislature simply do not address the relevant question. 1

The closest Ms. White came to revealing whether or not her

views would influence her perception of the evidence or honesty in2 Section 2254(d), before amendment by the AEDPA, provided:

In any proceeding instituted in a Federal court by

an application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court, a

determination after a hearing on the merits of a factual

issue, made by a State court of competent jurisdiction in

a proceeding to which the applicant for the writ and the

State or an officer or agent thereof were parties,

evidenced by a written finding, written opinion, or other

reliable and adequate written indicia, shall be presumed

to be correct . . . . [T]he burden shall rest upon the

applicant to establish by convincing evidence that the

factual determination by the State court was erroneous.

3 Amended 28 U.S.C. § 2254(e)(1) provides:

In a proceeding instituted by an application for a

writ of habeas corpus by a person in custody pursuant to

the judgment o f a State court, a determination of a

factual issue made by a State court shall be presumed to

be correct. The applicant shall have the burden of

-17- answering the special issues was, at best, equivocal. The trial

judge asked her, “You feel, Jonnie, as you sit here now, that you

couldn’t give the death penalty except where a person had been

convicted of murder before, or that kind of crime before?” Ms.

White responded, “Yes. That’s the way that I feel.” The trial

court found as a matter of fact that this answer indicated that Ms.

White would be biased against capital punishment and apparently

that her convictions would impair her decisionmaking.

A trial judge’s finding of bias during voir dire is a

determination of fact, subject to a presumption of correctness on

collateral review, either under the old 28 U.S.C. § 2254(d), 2 Witt

,

469 U.S. at 4 26-27, 105 S. Ct. at 853-54, or under the amended

provisions of the AEDPA. 3 Although the record is not as clear asrebutting the presumption of correctness by cle ar and

convincing evidence.

4 Although a COA is required for habeas appeals, there is

no such requirement for appeals under Section 848(q)(4)(B).

Sterling v. Scott

, 57 F.3d 451, 454 n.3 (5th Cir. 1995), c ert.

-18- we might like, the trial judge had enough evidence to make his own

factual determination of bias based on the questioning of counsel

and Ms. White’s answers. S ee Riles v. McCotter

, 799 F.2d 947, 949-

50 (5th Cir. 1986) (venire member properly excluded for saying she

could not impose the death penalty for murders that did not involve

mutilation). Ms. White stated several times that she believed that

capit al punishment was inappropriate for the type of crime

c ommitted by Fuller, even though Texas law unambiguously made a

single murder a capital offense. When the trial judge asked her if

she felt that she “could n’t” give the death penalty for a first

offense, she said, “Yes. That’s the way I feel.” She also said,

“I don’t believe that I could )) I could vote for a death penalty if

it was for one )) the first offense.” Fuller simply has not provided

enough evidence to rebut the presumption that the trial court was

correct. Therefore we will not upset the trial court’s

determination that the witness was biased and properly excluded

from the jury.

E

Final ly, Fuller contends that the court violated his

constitutional rights by refusing his request for state -funded

expert assistance under 21 U.S.C. § 848 (q)(4)(B). 4 In connectiondenied

,

___ U.S.

___, 116 S. Ct. 715, 133 L. Ed. 2 d 669 (1996);

Barnard v. Collins

, 13 F.3d 871, 878 n.6 (5th Cir.), cert. denied

, 510 U.S. 1102, 114 S. Ct. 946, 127 L. Ed. 2d 363 (1994).

-19- with his district court habeas action, Fuller filed two ex parte

motions for authorizati on to obtain expert assistance in

preparation for an evidentiary hearing scheduled for December 13,

1995. Specifically, he sought the aid of a clinical and forensic

psychologist and of a clinical a nd forensic pathologist. The

district court requested that the government reply to Fuller’s ex

parte motions, and the court later denied both of Fuller’s motions

without discussion “for the reasons set forth in the Respondent’s

opposition.” Judging from the government’s briefs on the issue,

the distric t court apparently decided that the experts, at best,

could only offer proof about issues that were procedurally barred.

The district court then denied Fuller’s petition for habeas relief

the day before the schedu led hearing, December 12, 1995.

Curiously, the court conducted the evidentiary hearing on schedule

the following day, even though it had already issued an order

disposing of Fuller’s petition. Fuller’s counsel proceeded at the

hearing without the re quested expert assistance for his client.

The record does nothing to explain this anomaly.

Two considerations convince us that Fuller was not denied a

constitutional right as required for grant of COA. First, because

he could not show substantial need for the assistance of the

experts, Fuller was not entitled to their assistance under the-20-

statute. Second, Fuller was denied an e x parte hearing on his

claims, but his relevant interests under the st atute ) ) namely the

provision of experts where necessary )) were not infringed.

In considering these two points, we first turn to the statute.

Congress passed the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-

690, § 7001(b), 102 Stat. 4181, 4193-94 (1989) to amend section 408

of the Controlled Substances Act, 21 U.S.C. § 848, providing legal

counsel and the assistance of experts for prisoners’ section 2254

and 2255 challenges t o capital sentences. Title 21 U.S.C. § 848

(q)(4)(B) provides:

In 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

in accordance with paragraphs (5), (6), (7), (8), and

(9).

(emphasis added). When the district court entertained Fuller’s

motions, Section 848(q)(9) added the following:

Upon a finding in ex parte proceedings that

investigative, expert or other services are reasonably

necessary for the representation of the defendant,

whether in connection with issues relating to guilt or

sentence, the court shall authorize the defendant’s

attorney to obtain such servi ces on behalf of the

defendant and shall order the paymen t of fees and

expenses therefore, under paragraph (10).

(emphasis added). Paragraph 10 provides that the court shall fix

reasonable rates for reasonable expenses. 21 U.S.C. § 848(q)(10).

In 1996, the AEDPA section 108 changed 848(q)(9), removing the-21-

ex parte proceeding requirement and changing the mandatory “shall”

language to the discretionary “may.” AEDPA § 108, Pub. L. No. 104-

132, 110 Stat. 1226 (1996). However, when the district court

considered Fuller’s motions, the AEDPA had not yet been passed, and

it denied Fuller’s requests under the old standard.

In light of the statutory language, we first note that Fuller

did not show a substantial need for expert assistance. The Supreme

Court has held that the language of section 848(q)(4)(B) “[o]n its

face

. . . grants indigent capital defendants a mandatory right to

qualified legal counsel and related services” in any federal post

conviction proceeding. M cFarland v. Scott

, 512 U.S. 849, 854, 114

S. Ct. 2568, 2571, 129 L. Ed. 2d 666 (1994) (footnote omitted).

Claimants under the statute need only show indigence and that the

services requested are “reasonably necessary.” S ee Lawson

, 3 F.3d

at 753 (interpreting § 848(q)(4)(B) and 18 U.S.C. § 3006A(e)(1)).

The government does not contest Fuller’s i ndigence; indeed, the

court allowed him to proceed in forma pauperis

. However, the

governme nt asserts that clinical and forensic psychiatrists and

pathologist s were not necessary because their testimony would be

procedurally barred. Fuller’s motions do not say exactly how he

would empl oy the experts in preparation for the evidentiary

hearing, but he does not claim that they can show that any aspect

of his trial violated Fuller’s constitutional rights. In addition,

Fuller’s failure to raise these forensic issues at trial or direct-22-

appeal bars their consideration in a collateral attack unless

Fuller shows cause and prejudice or that a miscarriage of justice

would result. K eeney v. Tamayo-Reyes , 504 U.S. 1, 11-12, 112 S.

Ct. 1715, 1721, 118 L. Ed. 2d 318 (1992). He has shown none of the

above. Therefore we cannot say that the district court erred in

its ultimate conclusion that the experts were reasonably necessary,

regardless of its improper request for government briefing on the

issue.

Second, the denial of ex parte hearings on this issue does not

harm any substantial guarantees of the statute. The district court

did not inquire into the necessity of expert aid, but instead

invited the government, which was not a party in interest, to

respond to the ex parte motion. The district court then summarily

denied the request based on the government’s response.

Ex parte proceedings, by definition, are “taken or granted at

the instance and for the benefit of one party on ly, and without

notice to, or contestation by, any person adversely int erested.”

Black’s Law Dictionary 576 (6th ed. 1995). The district court’s

disregard of section 848(q)’s ex parte proceeding requirement and

the court’s reliance on the government’s response were improper in

this case.

The question of whether failure to provide ex parte

proceedings as guaranteed by section 848(q) constitutes reversible

error is an issue of first impression for this Circuit. The Fourth-23-

Circuit has declared that ex parte proceedings are the “only proper

means of adjudicating appointment motions” under the section, but

then held that th e district court’s adversary hearing on the

pet itioner’s section 848(q) motion was not reversible error.

Lawson

, 3 F.3d at 751-52. The L aws on court held that certain

“countervailing considerations” made the hearing a “justifiable

attempt to ensure that the factual allegations supporting Lawson’s

petition” had been fairly presented. Id. at 752.

In an unpublished opinion, the Ninth Circuit granted a writ of

mandamus, ordering a district court to vacate its habeas ruling and

to grant petitioner assistance under section 848(q). D a niels v.

United States Dist. Court for Cent. Dist. of California

, 76 F.3d

385 (1995) (table). The district court in Daniels appointed a

psychiatric expert to determine whether a psychiatrist was

necessary to his habeas case. Apparently holding this to be

reversible error, the Ninth Circuit issued an unpublished opinion

granting a writ of mandamus directing the district court to provide

assistance. The Ninth Circuit then withdrew that opinion, granted

rehearing, then issued a superseding table opinion granting the

writ of mandamus again. See Daniels v. United States Dist. Court

for Cent. Dist. of California , No. 94-70295, 1995 WL 419148 at *6

(July 18, 1995) (opinion withdrawn). The fact-specific opinion of

the Fourth Circuit and table opinion of the Ninth Circuit give us

little guidance on this question.-24-

Although this circuit has not yet addressed the precise issue

here, we have held that it was reversible error to misconstrue the

analogous appointment provision of the Criminal Justice Act, 18

U.S.C. § 3006A(e), which requ ires that decisions on expert

appointment be made "after appropriate inquiry in an ex parte

proceeding." 18 U.S.C. § 3006A(e)(1); United States v. Hamlet

, 456

F.2d 1284, 1285 (5th Cir. 1972) (per curiam) (trial court erred in

denying se ction 3006A motion without conducting the e x parte

inquiry required by statute); U nited States v. Theriault

, 440 F.2d

713, 715 (5th Cir. 1971) (same). In the section 3006A(e) context,

we have remanded to the district court for adherence to the

statute. Hamlet , 456 F.2d at 1285; Theriault , 440 F.2d at 715.

However, the guarantees of section 3006A(e) are distinct in at

least one important respect: the statute provides a defendant

expert assistance for preparation for his trial, and provision of

those statutory guara ntees therefore takes on a constitutional

dim ension not present in collateral habeas corpus proceedings.

Compare The riault , 440 F.2d at 716-717 (Wisdom, J., concurring)

(invoking indigent criminal defendant’s constitutional right to

court-appointed expe rts to assist with defense) w ith Murray v.

Giarratano

, 492 U.S. 1, 10, 109 S. Ct. 2765, 2770, 106 L. Ed. 2d 1

(1989) (holding that even capital prisoners have no constitutional

right to counsel in habeas cases). The fact that there is no

constitutional right at stake in the district c ourt’s failure to-25-

provide ex parte proceedings in the habeas context counsels against

vacating the district court’s decision on so narrow a ground.

The district court, in our view, should have allowed Fuller to

demonstrate the need for expert assistance. It failed both in not

discussing the necessity of the experts and in allowing the

government to interfere in what should have been an ex parte

determination. That the court dismissed Fuller’s motion so

summarily and on the sole basis of the government’s (improper)

rebuttal is particularly troubling. However, because the court was

ultimately correct in holding that su ch experts were not

“reasonably necessary,” because Fuller had no constitutional right

to an ex parte hearing, and because the district court on remand

could ratify its earlier ruling by reciting the reasons briefed by

the government, we hold that the district court’s unorthodox

procedure in denying Fuller’s motion is harmless error, not the

denial of a constitutional right. Therefore we deny COA on this

issue.

IV

For the foregoing reasons, we GRANT Fuller’s application for

a COA on all issues but the las t, and we AFFIRM the district

court’s denial of Fuller’s petition.