March 25, 2003
MEMORANDUM OPINION AND ORDER
Texas death-row inmate Emanuel Kemp Jr. ("Petitioner" or "Kemp") has filed a petition for a writ of habeas corpus pursuant to Title 28, United States Code, Section 2254. Respondent is Janie Cockrell, the Director of the Institutional Division of the Texas Department of Criminal Justice ("TDCJ-ID"). For the reasons set forth below, the Court dismisses Kemp's sixth claim for relief as premature, and denies each of the remaining claims in the petition for writ of habeas corpus.
On May 28, 1987, Emanuel Kemp Jr. sexually assaulted and murdered Johnnie Gray during the course of hijacking a Fort Worth Transit bus. A jury convicted Kemp of capital murder, and assessed his punishment at death by lethal injection. State v. Kemp, No. 0312642-D (Crim. Dist. Ct. No. 3, Tarrant County, Tex. May 3, 1988). The Texas Court of Criminal Appeals affirmed the conviction and sentence. Kemp v. State, 846 S.W.2d 289 (Tex.Crim.App. 1992), cert. denied, 508 U.S. 918, 113 S.Ct. 2361, 124 L.Ed.2d 268 (1993). Kemp filed an application for writ of habeas corpus in the state trial court on August 15, 1994. (Record of first state habeas proceeding, hereafter "1st SHR," vol. 1, pp. 2-17.) The trial court appointed a psychiatrist to examine Kemp and evaluate his competency to be executed. Ex parte Kemp, No. C-3-2271-0312642-A (Crim. Dist. Ct. No. 3, Tarrant County, Tex. Sep. 12, 1994); (1st SHR, vol. 1, pp. 198-99.) After initial evaluations indicating incompetency and after the entry of an intermediate stay of execution, Ex parte Kemp, No. C-3-2271-0312642-A (Crim. Dist. Ct. No. 3, Tarrant County, Tex. Oct. 20, 1994); (1st SHR, vol. 1, pp. 204-07), Kemp was eventually evaluated as competent to be executed (1st SHR, vol. 1, pp. 223-24). The Texas Court of Criminal Appeals then lifted the stay of execution and denied the application for writ on September 30, 1998. Ex parte Kemp, No. 36, 331-01 (Tex.Crim.App.).
On April 1, 1999, the trial court set Kemp's execution for July 1 of that year. Ex parte Kemp, No. 0312642-D (Crim. Dist. Ct. No. 3, Tarrant County, Tex). Kemp's attorney timely filed in the state trial court a petition for habeas-corpus relief on June 6. (Record of second state habeas proceeding, hereafter "2nd SHR," vol. 1, pp. 2-150.) The state trial court made no findings of fact or conclusions of law and instead forwarded the application to the Texas Court of Criminal Appeals on June 11. That court concluded that the subsequent state petition was barred as an abuse of the writ in violation of Art. 11.071, § 5 of the Texas Code of Criminal Procedure, and dismissed the petition. Ex parte Kemp, No. 36, 331-02 (Tex.Crim.App. Jun. 21, 1999) (unpublished). Thereafter, Petitioner requested and obtained a stay of execution from this Court. Kemp v. Johnson, No. 4:99-CV-490-Y (N.D. Tex., Jun. 22, 1999).
In seven grounds for relief, Kemp complains of the postconviction habeas-corpus process in state court, ineffective assistance of habeas counsel, the state trial court's denial of funds to obtain a mental-health expert during his trial, denial of his right to an impartial jury by overruling his challenges for cause of jurors who demonstrated racial prejudice and a bias in favor of the death penalty, and issues related to his mental competence to be executed and forced medication during his incarceration. For the reasons set out below, none of these allegations is sufficient to establish a present right to the relief requested.
Kemp's petition for a federal writ of habeas corpus was filed after April 24, 1996. This proceeding is therefore governed by the terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997); Nobles v. Johnson, 127 F.3d 409, 413 (5th Cir. 1997). That statute significantly impacts federal habeas-corpus proceedings, especially as to the deference that must be accorded state-court findings.
The effective date of the AEDPA.
The AEDPA provides the following deference scheme for review of state determinations of claims that were adjudicated on the merits in state court, as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d). The Supreme Court has explained that the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have independent meaning.
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, of if it decides a case differently than we have done on a set of materially indistinguishable facts. [ Williams v. Taylor, 529 U.S. 362,] at 405-406. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. Id. at 407-408. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams that an unreasonable application is different from an incorrect one. Id. at 409-410. See also id., at 411 (a federal habeas court may not issue a writ under the unreasonable application clause "simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly").Bell v. Cone, 535 U.S. 685, ___, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002); See also, Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001) (hereinafter also " Penry II"). Under the "unreasonable application" analysis, it is not enough that the state court incorrectly applied federal law. To be entitled to relief, Petitioner must show that the "ultimate legal conclusion" reached by the state court was objectively unreasonable. Neal v. Puckett, 286 F.3d 230 (5th Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003)
However, this deference scheme applies only to issues that have been adjudicated on the merits in state court. A resolution or "adjudication" on the merits in the habeas-corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.), cert. denied, 531 U.S. 849 (2000); Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). Some of the claims raised by Petitioner appear to have been resolved by the state court on procedural grounds, and Respondent has raised a procedural bar to such claims. Therefore, such procedural issues must be resolved before these claims may be addressed on their merits.
Respondent raises a procedural bar to Petitioner's first, second, and seventh claims. She asserts that these three claims were raised by Petitioner for the first time in his petition that was dismissed by the state court as an abuse of the writ. (Ans. p. 11.) If true, that would be sufficient to bar federal habeas review of Petitioner's claims.
Federal courts "will not take up a question of federal law presented in a case `if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 885, 151 L.Ed.2d 820 (2002) (alteration in original) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). This is because of the importance of affording due respect to a state's own laws, and of allowing state courts the first opportunity to correct any mistakes in their own application of federal law.
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. . . . When the independent and adequate state ground supporting a habeas petitioner's custody is a state procedural default, an additional concern comes into play. . . . Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance. . . . The independent and adequate state ground doctrine ensures that the State's interest in correcting their own mistakes is respected in all federal habeas cases.Id. at 731-32. A review of the manner in which these claims proceeded through the state postconviction process indicates that with respect to the factual bases for two of these claims, such reasoning does not apply to bar their consideration in this Court.
In his first petition for a postconviction writ of habeas corpus filed in state court, Kemp presented two claims: one complaining of his incompetence to be executed, and the other complaining of the madequacy of the state process that was afforded him to investigate and present his claim of incompetence. (1st SHR, vol. 1, pp. 4-15.) This petition also attached as an exhibit a motion for appointment of psychiatrist or psychologist, and the record shows the separate filing of such motion in state court on the same date, August 15, 1994. (1st SHR, vol. 1, pp. 178-86.)
Specifically, with respect to the complaints against the state process that were also raised in his second state application, Kemp claimed that his rights as an indigent person to the appointment of counsel (1st SHR, vol. 1, p. 5) required the appointment of a mental-health expert to assist him in the presentation of his claimed incompetence to be executed. Further, he insisted that failure to so appoint denied him meaningful access to the state postconviction remedy for such incompetence. (1st SHR, vol. 1, pp. 6-8.) He also argued that the procedural-due-process rights that all defendants have to "present their defenses" mandated the type of expert assistance set forth in Ake v. Oklahoma, 470 U.S. 68, 76, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). (1st SHR, vol. 1, pp. 8-10.)
On September 12, 1994, the state prosecutor filed his response, arguing that Kemp had not made the preliminary showing required under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), (1st SHR, vol. 1, pp. 192-195), but also requesting that the court appoint an independent psychiatrist to examine Kemp. (1st SHR, vol. 1, p. 195.) On that same day, the trial court entered its order for psychiatric examination, which contained findings and conclusions without noting any hearing or consent, or even advance notice, to the petitioner or his attorney. (1st SHR, vol. 1, p. 198.) On September 30, 1994, the court-appointed psychiatrist filed a report containing her opinion that Kemp was then incompetent to be executed. (1st SHR, vol. 1, pp. 201-03.) On October 20, 1994, the state trial court found Kemp incompetent. Based upon this finding, that court determined that Kemp's requests for funds for evaluation and for hearing were "premature and rendered moot," and recommended to the Court of Criminal Appeals that Kemp be granted an indeterminate stay of execution, subject to a subsequent finding of execution competency. (1st SHR, vol. 1, pp. 204-07.)
The State's answer stated: "in the interest of seeing that Applicant's claims are fully and fairly litigated in an expedient fashion, the State requests the trial court to appoint an independent psychiatrist to evaluate Applicant's mental status in light of Ford v. Wainwright's parameters." Id.
The trial court's order stated:
HAVING CONSIDERED Applicant's petition for writ of habeas corpus and the State's Answer to Applicant's writ, the court ADOPTS the conclusions found in the State's Answer as its own. Furthermore, the court is of the opinion that the relief sought in each of Applicant's grounds is premature and should be DENIED at this time. However, the Court believes that Applicant should be examined to determine whether he is competent to be executed. Therefore, the Court holds any recommendation to the Court of Criminal Appeals in abeyance until a psychiatric evaluation is completed.Id.
The full findings and conclusions entered on this date are as follows:
Having considered the allegations contained in Applicant's petition for writ of habeas corpus, the State's reply, the medical findings made by Dr. Ann Turbeville following her appointment by this Court, and the record from this case, the Court enters the following findings of fact and conclusions of law in connection with Applicant's first writ of habeas corpus.
1. David L. Richards, court-appointed counsel for Applicant, met with Applicant on June 24, 1994.
2. By an agreed order on June 29, 1994, the Court set up a briefing schedule for Applicant's first Tex. Code Crim. Proc. Ann. art. 11.07 writ of habeas corpus proceeding.
3. On August 15, 1994, Applicant filed and the trial court denied a motion requesting the appointment of a mental health expert.
4. Applicant filed his first writ of habeas corpus on August 15, 1994. Since Applicant filed a writ of habeas corpus within the time period set forth in the agreed briefing schedule, no execution date was set by the trial court.
5. Applicant's writ of habeas corpus contained two allegations. Applicant alleged that the trial court denied Applicant the necessary financial assistance for the employment of a mental health expert to determine Applicant's execution competency. Applicant further alleged that he is incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1966).
6. With his writ of habeas corpus, Applicant filed myriad records from the Texas Department of Criminal Justice, Institutional Division [TDCJ]. These documents disclose that Applicant has been treated at the Jester IV psychiatric unit of TDCJ. These records suggest that Applicant's condition can be controlled by the use of medication; Applicant was transferred back to Ellis I during the summer (sic) of 1994.
7. Other evidence in the record regarding Applicant's mental health is as follows: Prior to Applicant's trial in this cause, the Court appointed Dr. Sanford Lehrer to determine Applicant's competency to stand trial. Dr. Lehrer determined that Applicant was competent to stand trial and that there was not evidence of any gross thought disorder. Dr. Lehrer diagnosed that Applicant suffered from a character disorder with sociopathic and paranoid features. Dr. Lehrer also believed that Applicant's peculiar presentation was deliberate; he was malingering.
8. The State filed its reply to Applicant's writ of habeas corpus on September 12, 1994. It its answer, the State argued that an intermediate option, contrary to Applicant's two alternative requests, should be utilized. The State asked the Court to appoint an independent expert to examine Applicant and determine whether Applicant was competent to be executed under Ford v. Wainwrigt.
9. In Texas jurisprudence, there is no statutory or decisional guide dictating what constitutes a threshold showing of execution competency.
10. The Court concludes, as a matter of law, that at the time of the filing of Applicant's writ of habeas corpus, Applicant had not made a threshold showing of incompetency.
11. Nevertheless, in an abundance of caution, the Court ordered the appointment of an independent psychiatrist to evaluate Applicant's execution competency in light of Ford v. Wainwright.
12. The Court ordered Dr. Ann Turbeville to conduct a psychiatric examination of Applicant; the examination took place on September 23, 1994, in the Tarrant County Jail.
13. The Court concludes that Applicant's request for financial assistance to employ a mental health expert is premature and rendered moot, since the trial court ordered an independent psychiatric examination of Applicant.
14. On September 30, 1994, Dr. Turbeville filed a written report regarding her examination of Applicant. Dr. Turbeville concluded that Applicant suffers from a major mental illness that interferes with his rational understanding and thinking. Dr. Turbeville further concluded that Applicant "doesn't seem to have a grasp of the effects of the death penalty on him. He does not seem to understand that the punishment is for the crime for which he was convicted."
15. The Court finds, as a matter of fact, that Applicant is presently suffering from a major mental illness and, as a result, he does not seem to comprehend that he is to be executed because he was found guilty of the commission of a capital murder offense.
16. The Court concludes, as a matter of fact, that Applicant is entitled to an indeterminate stay of execution under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), given that he does not seem to comprehend that he is to be executed for the commission of a capital murder offense.
17. The Court concludes, as a matter of law, that Applicant's request for financial assistance to employ a mental health expert has been rendered moot by Dr. Turbeville's finding that Applicant is not presently competent to be executed.
18. The Court finds that, in his second habeas claim, Applicant requested that a finding of execution incompetency be entered; since Applicant's claims were stated in the alternative and the relief sought in the second is obtained, the first habeas claim is moot.
19. The Court finds that David L. Richards has effectively represented his client in this matter, and the Court suggests that Mr. Richards remain counsel of record for Applicant during any ensuing proceedings.
20. The Court finds that there is no Texas statute addressing the issue of execution competency; thus, there are no specific procedures to be followed when raising and addressing this issue.
21. The Court finds that, as a matter of law, Applicant's claim regarding his execution competency has followed the dictates of Ford v. Wainwright.
22. The Court finds that there are no Texas procedures relating to the reassessment of competency after a finding of execution incompetency. Therefore, in light of this statutory vacuum, the Court concludes that a periodic reassessment of Applicant's execution competency should occur on a biannual basis.
THEREFORE, PREMISES CONSIDERED, it is the RECOMMENDATION of this Court to the Court of Criminal Appeals that the Court grant Applicant an INDETERMINATE STATE OF EXECUTION, SUBJECT TO A SUBSEQUENT FINDING OF EXECUTION COMPETENCY.
(1st SHR, vol. 1. pp. 204-07.)
On December 8, 1994, Kemp's habeas attorney, David L. Richards, filed a motion to substitute counsel, which was granted on December 12, 1994, and Allan Butcher was appointed in his place. (1st SHR, vol. 1, pp. 209-11.) Thereafter, the same court-appointed psychiatrist conducted periodic examinations and re-evaluations of Kemp's competency, filing her reports on September 13, 1996, and November 18, 1997. (1st SHR, vol. 1, pp. 217-18, 223-24.) In the later of these re-evaluations, she noted the obvious effects of the psychiatric medication administered to Kemp, along with his improved mental state resulting in her opinion that he had finally attained competency to be executed. (1st SHR, vol. 1, p. 224.)
The record does not indicate what notice, if any, was afforded Kemp regarding this motion before it was granted and his new counsel was appointed.
Dr. Turbeville's report filed on November 18, 1997, included observations of the improvements resulting from his psychiatric medication:
Mr. Kemp was markedly slowed, his speech is slow, and he has obvious effects of the medication that he has been receiving which is 300 mg of Haldol every four weeks and Cogentin 2 mg a day. Mr. Kemp stated that he has been suffering a burden. By this, he explained that the psychiatrists are giving him injections that make him feel extremely slowed down. He also described not being able to leave his cell without handcuffs as another burden.
* * *
As I said before, his speech is markedly slow and thick-tongued from the medications that he is taking. . . . Contrary to previous examinations that have shown much delusional material, at this time the only delusional material that was elicited was some old delusional material. . . . His affect is flat.
(1st SHR, vol. 1. pp. 223-24.)
The records of this state habeas proceeding reveal no further action in the trial court other than the certification on December 10, 1997, of the record as a true copy and of its delivery by the District Clerk of Tarrant County, Texas, to the Court of Criminal Appeals of the State of Texas. (1st SHR, vol. 1, p. 269 and cover.) The record reveals no further action before an order was entered by the Texas Court of Criminal Appeals denying relief and lifting the stay of execution. Ex parte Kemp, No. 36, 331-01 (Sep. 30, 1998)
The order stated, in part, as follows:
In the instant case, applicant presents two allegations in which he challenges the validity of his sentence. The trial court entered findings of fact and conclusions of law recommending that the relief sought be denied on the first allegation and, regarding the second allegation, that an indeterminate stay of execution be imposed until applicant is found competent. Applicant has since been found competent through a court-ordered psychiatric exam. The trial court has now forwarded the application to this Court.
This Court has reviewed the record. The relief sought is denied and the stay of execution is lifted.Id. To this per curiam order, Judges Baird and Overstreet dissented.
On November 17, 1998, the trial court brought Kemp into open court and conducted a hearing regarding the continuation of his post-conviction habeas review and the appointment of counsel. (Supp. SHR, pp. 3, 8.) Although Kemp apparently refused to speak at this hearing, the trial court determined that he was indigent and unable to employ counsel, and that he desired to have an attorney appointed for the purpose of pursuing a second writ of habeas corpus. (Supp. SHR, pp. 7-10, 12.) After learning that the Court of Criminal Appeals would not appoint counsel to prosecute a subsequent writ, the trial court appointed attorney David Pearson to investigate and file any subsequent application for writ of habeas corpus. Ex parte Kemp, No. C-3-2271-0312642-A (Crim. Dist. Court No. 3, Tarrant County, Texas, Dec. 7, 1998). The trial Court also appointed a private investigator to assist such attorney. Ex parte Kemp, No. C-3-2271-0312642-A (Crim. Dist. Court No. 3, Tarrant County, Texas, Feb. 26, 1999). Due to Kemp's apparent refusal to confer with his attorney, the trial court also entered an order to allow Kemp's attorney access to his client. Ex parte Kemp, No. C-3-2271-0312642-A (Crim. Dist. Court No. 3, Tarrant County, Texas, Mar. 12, 1999). Less than a month later, the trial court entered its order scheduling Kemp's execution for July 1, 1999. Ex parte Kemp, No. C-3-2271-0312642-A (Crim. Dist. Court No. 3, Tarrant County, Texas, Apr. 1, 1999); (2nd SHR, vol. 1, pp. 351-52).
Apparently, Kemp refused to speak because he was being confined in handcuffs during the hearing. (Supp. SHR, p. 8; Reporter's Record of hearing dated November 18, 1998, pp. 2-6.)
There was no order on the record submitted by the trial court. However, this message was conveyed in correspondence from Richard Wetzel, Executive Administrator, Texas Court of Criminal Appeals, to Hon. Don Leonard, dated November 23, 1998.
On May 26, 1999, Kemp filed a motion for court-appointed psychiatrist or psychologist. (2nd SHR, vol. 1, pp. 168-170.) In response, the state prosecutor filed his motion to dismiss on June 8, 1999. (2nd SHR, vol. 1, pp. 244-56.) On June 9, 1999, Kemp filed his subsequent application for writ of habeas corpus and for appointment and compensation of counsel. (2nd SHR, vol. 1, pp. 2-150.) On that same date, Kemp filed his motion for hearing on competence for execution, motion for stay of execution, and motion to forward his motions filed in the trial court in contemplation of or in support of his subsequent habeas application to the Texas Court of Criminal Appeals. (2nd SHR, vol. 2, pp. 358-9, 361-63, 366-67.) On June 10, 1999, the state prosecutor filed his response to Kemp's motions and his answer to Kemp's subsequent habeas-corpus application. (2nd SHR, vol. 2, pp. 369-72, 373-96, and attachments to p. 1094.) Each of Kemp's motions was denied by the trial court on that same date. (2nd SHR, vol. 2, pp. 360, 365, 368.) No further order appears to have been entered by the trial court before the Texas Court of Criminal Appeals held that such subsequent state application did not satisfy the requirements of Art. 11.071, § 5(a), of the Texas Code of Criminal Procedure, and dismissed the entire petition as an abuse of the writ. Ex parte Kemp, No. 36, 331-02 (Tex.Crim.App. Jun. 29, 1999) (unpublished). As previously indicated, Kemp then requested and obtained a stay of execution from this Court.
The order of the Texas Court of Criminal Appeals dismissing Kemp's subsequent petition states that "[w]e have reviewed the application and find that it fails to satisfy Art. 11.071, Sec. 5(a), V.A.C.C.P. Accordingly, the application is denied as an abuse of the writ." Id.
In his first and second claims for federal habeas-corpus relief, Kemp again complains of the madequacy of the state process that was afforded to him for the investigation and presentation of his claimed incompetence to be executed. His first claim contends that he was denied due process of law by the Texas Court of Criminal Appeals because the consequences of his mental incompetency and the law against subsequent writs of habeas corpus effectively denied him meaningful collateral review of his death sentence. (Pet., pp. 6-13.) His second claim alleges that his mental incompetence deprived him of the effective assistance of counsel guaranteed under the Sixth and Fourteenth Amendments to the Constitution. (Pet., pp. 13-16.) In his seventh claim, Kemp contends that medication was forced upon him in violation of his due-process right under the Fourteenth Amendment to be free of such medication absent any showing of that such medication is necessary to protect the inmate from a danger to himself or others. (Pet., pp. 62-64).
Respondent asserts that each of these three Claims was raised by Kemp for the first time in his second state application for postconviction habeas-corpus relief from this conviction and death sentence. Indeed, the presentation of each of these claims in this Court contains language originally presented in such subsequent state habeas application. However, much of the substance of the first and second claims was included in Kemp's original state habeas application. Therefore, it does not appear that all of the factual matters contained within these claims would be subject to a procedural bar to their consideration in this court.
In Kemp's original application, he complained of the state habeas process for resolution of his claimed incompetency to be executed. This specifically included complaints that the state court's denial of funds to hire a mental-health expert violated his procedural-due-process rights, citing Ake v. Oklahoma, 470 U.S. 68, 76, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), which connects such right to expert assistance with the Sixth Amendment right to the effective assistance of counsel. These claims were more thoroughly presented as subparts to the third claim for relief contained in his "Subsequent Application for Writ of Habeas Corpus and Motion for Appointment and Compensation of Counsel" (hereafter "subsequent application" and "subsequent state application") filed in state court on June 9, 1999. (2nd SHR, vol. 1, pp. 4, 17-19.) Kemp's seventh claim for relief filed in this court was originally raised as his second claim for relief contained in his subsequent state application, (2nd SHR, vol. 1, pp. 4, 15-16.), and was not contained in Kemp's first "Petition for Post-Conviction Writ of Habeas Corpus" filed on August 15, 1994. (1st SHR, vol. 1, pp. 2-17.)
With respect to those portions of Kemp's claims wherein he asserts matters also raised in his first state habeas petition, Kemp cannot be said to have "deprived the state courts of an opportunity to address those claims in the first instance" as would be proscribed by Coleman v. Thompson. 501 U.S. at 732. Instead, it appears that any complaint against such repeated allegations would be the result of Kemp's diligence in affording the state courts an opportunity to correct any mistakes before presenting them in federal court. Further, since Respondent does not assert any procedural bar to Kemp's claim in this Court that he is incompetent to be executed, and the resolution of such claim may involve a review of the process by which such claim was resolved in the state habeas court, any issues raised in these claims concerning such process may be considered in that analysis. Therefore, the imposition of such procedural bars in this Court will be specific to complaints asserted as independent claims in Kemp's subsequent state petition and in his federal petition. The factual matters presented in such repeated claims may be considered in reviewing the state court's resolution of Kemp's claimed incompetency to be executed.
The Court notes Respondent's distinction between claims that were raised both in Kemp's first and second state habeas applications, and claims that were presented "for the first time" in Kemp's subsequent application. (Ans. p. 11.) A state prisoner having a federal claim denied on its merits, should not be punished by a procedural bar to federal review merely because he again presents the same claim to the state court in a subsequent application for habeas-corpus relief.
See Ford v. Wainwright, 477 U.S. at 414.
A state court denial of a federal claim on state procedural grounds will normally be "adequate" to foreclose review of such claim in federal court, if the state procedural rule was "firmly established and regularly followed" at the time that it was violated. See Ford v. Georgia, 4998 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (state procedural default is not an "independent and adequate state ground" barring subsequent federal review unless the state rule was "firmly established and regularly followed" at the time it was applied). A petitioner seeking to avoid a bar to his claim on the basis that it is not adequate to foreclose federal review bears the burden of showing that the state did not strictly or regularly follow the procedural bar at the time of the default. See Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997) (holding petitioner's federal claim barred because he failed to carry his burden of showing that the state procedural rule was inconsistently or irregularly applied at the time of the violation).
This circuit recognizes that the Texas abuse-of-the-writ doctrine has been an adequate state ground to bar federal habeas review since the Texas Court of Criminal Appeals announced strict adherence to this doctrine in February of 1994. See Emery v. Johnson, 139 F.3d 191, 195-96 (5th Cir. 1997) (citing Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994). In Barrientes v. Johnson, 221 F.3d 741, 759 n. 10 (5th Cir. 2000), the Court of Appeals concluded that it should treat Art. 11.071, § 5, of the Texas Code of Criminal Procedure as a codification of the Texas abuse-of-the-writ doctrine. Therefore, this procedural ground is firmly established and regularly followed in Texas.
However, before a state procedural rule can be considered fully adequate to bar federal habeas review of a claim, the state court's application of the procedural bar must not be exorbitant. Even if a state procedural rule is shown to be "firmly established and regularly followed," there are "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question." Lee v. Kemna, 122 S.Ct. at 885. This appears to be an extremely narrow exception that will rarely apply to an otherwise adequate state procedural rule.
The unusual nature of this exception is evident by the description of the situation by the Supreme Court, which quoted with approval from the opinion of the Eighth Circuit dissenter as follows: "`[A]ny seasoned trial lawyer would agree' that insistence on a written continuance application, supported by an affidavit, `in the midst of trial upon the discovery that subpoenaed witnesses are suddenly absent, would be so bizarre as to inject an Alice-in-Wonderland quality into the proceedings.'" 122 S.Ct. at 889.
The application of the abuse-of-the-writ doctrine to this subsequent state application appears consistent with the purposes of such doctrine: avoiding a piecemeal litigation of claims presented by a capital inmate in a manner to delay his scheduled execution. See Ex parte Gardner, 959 S.W.2d 189, 191 (Tex.Crim.App. 1996) (citing Ex parte Carr, 511 S.W.2d 523, 525 (Tex.Crim.App. 1974). Any difficulty in discovering the facts to support Kemp's habeas claims would not appear to be encompassed by this narrow exception. Instead, the consideration of any inability to discover facts would more properly occur in the context of the broader exception of cause and prejudice.
Even if an independent and adequate state ground exists to support the state judgment, the federal court may consider the claim if the petitioner can demonstrate sufficient cause and prejudice to excuse the procedural default, or that imposition of the bar would result in a fundamental miscarriage of justice. In Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2656, the Supreme Court concluded its discussion of the development of this rule with the following statement:
"We now make it explicit: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."
Therefore, to avoid the imposition of such bar, Kemp must demonstrate either (1) a sufficient cause for a procedural default of his claim in state court and actual prejudice resulting from a bar to its consideration now, or (2) that a failure to consider his claim at this point will result in a fundamental miscarriage of justice. An example of sufficient cause for the default may include a showing that defense counsel's performance was "constitutionally ineffective under the standard established in Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]" or a showing "that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule" such as "a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or that `some interference by officials' . . . made compliance impracticable. . . ." Carrier, 477 U.S. at 488 (quoting Brown v. Allen, 344 U.S. 443, 486, 73 S.Ct. 397, 422, 97 L.Ed. 469 (1953)). A fundamental miscarriage of justice would include the "extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. at 496.
Kemp bears the burden of proving such an exception to the application of the procedural bar. In Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 1591, 146 L.Ed.2d 518 (2000), the Supreme Court stated that "[w]e therefore require a prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim." (Emphasis in original.) Since Kemp has not replied to Respondent's assertion of this procedural bar, and does not specifically present any exception to justify this Court's consideration of such otherwise-barred claims, this Court may well conclude that no such exception exists and deny each of these independent claims on the basis of this procedural bar. Kemp does not allege that he is actually innocent of the offense for which he was convicted, and there is nothing before this Court to suggest his actual position in response to such procedural bar.
Nevertheless, any difficulty in discovering the factual basis for his first and second claims due to Kemp's own mental incompetence could not excuse his failure to assert them earlier. Since these claims are said to exist because of his incompetence. Kemp cannot also say that his incompetence in any way prevented him from making them. Instead, this shows that such claims are not independent of his claimed incompetence to be executed. Further, any failure of Kemp's attorney to assert his forced-medication claim prior to his subsequent application for state habeas-corpus relief would not be excused by his lack of awareness of such ground at the earlier time. Even if the importance of such forced medication to a finding of his incompetency to be executed was not apparent to his attorneys before the final evaluation by the court-appointed psychiatrist, it cannot be said that they were "not reasonably available to counsel" before that time. See Carrier, 477 U.S. at 488. Therefore, these reasons do not state sufficient cause to excuse Kemp's default of these claims in state court. But, even if there was cause, there is no prejudice.
The state records show a long progression of medication to aid Kemp's mental condition during the time he was represented by counsel. Kemp's forced medication was first apparent to his attorneys from at least the time of the voir-dire proceedings in the trial court on April 7, 1988. On the record of proceedings that day, his attorneys noted that there was a disturbance involving Kemp at the jail, and that Kemp told his attorneys that "they had shot him with some medication, but we are not sure what or how much." (SOF XIII, p. 3.) On April 12, 1988, the physician that administered the medication testified in open court that it was Haldol. (SOF XVI, p. 20.) This appears to be the primary medication that improved his mental condition sufficient to be evaluated as competent to be executed. (1st SHR, vol. 1, p. 223.) Although the earlier medication does not appear to be an attempt by the authorities to improve his competence, but solely to "calm him down" during a "psychotic breakdown" when he "was a threat to his own life or limb by banging his head against the wall or banging his arms against the floor and that type of thing" (SOF XVI, p. 19), once his competence became an issue, any claim would have become apparent. Kemp's psychiatric medication became an important fact that was evident throughout his treatment, including each of the evaluations by the court-appointed psychiatrist during state habeas review. In her first report filed with the state court on September 30, 1994, the psychologist noted Kemp's statements to her that he believed the prison authorities were trying to "spoil him from the inside out and in some of the medication they are giving him," and that "when he did not get his clemency, he stopped his medicines, mostly Haldol and Prolixin but they are not forcing medication and shot (sic) on him." (1st SHR, vol. 1, p. 202.) She concluded this report with her opinion that "despite taking medications," Kemp was incompetent to be executed. (Id. at p. 203.) In her report filed on September 13, 1996, she observed
The patient states that he is currently taking his Haldol shots, but that he did not want to take them and wanted to take pills. He is also taking Cogentin. In reviewing his medical records from TDC, it appears that between three and five times a year, he will refuse medication and be transferred to Gesture Unit where medication is forced upon him. He is currently taking 300 mg of Haldol IM a month, which is a massive dose.
(Emphasis added) (1st SHR, vol. 1. p. 218). She concluded in that same report that "[a]lthough this patient is being forced to take medication that seems to have some of his acute symptoms under control, he still does not have an adequate grasp of reality." (Emphasis added.) Id. Therefore, his attorneys had notice of the forced medication and the improvement that it had on his mental competency long before the psychiatric opinion in November of 1997 that Kemp had finally attained competency to be executed. (1st SHR, vol. 1, p. 223-24.)
Kemp had no constitutional right to collateral review of his conviction in state court, by writ of habeas corpus or otherwise. See Pennsylvania v. Finley, 481 U.S. 551, 556-57, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987); United States v. MacCollom, 426 U.S. 317, 323, 96 S.Ct. 2086, 2090-91, 48 L.Ed.2d 666 (1976). He also had no right to counsel in his state habeas review of the conviction after its direct appeal. See Coleman, 501 U.S. at 752-53; Finley, 481 U.S. at 555, 107 S.Ct. at 1993; Jones v. Johnson, 171 F.3d 270, 277 (5th Cir. 1999). Accordingly, any failure to provide "competent counsel" for state habeas-corpus review of his conviction and death sentence cannot form cause for his procedural default in state court. See Martinez v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001), cert. denied, 122 S.Ct. 1175 (2002); In re Goff, 250 F.3d 273, (5th Cir. 2001); Fairman v. Anderson, 188 F.3d 635, 643 (5th Cir. 1999). Nor can his claim of its denial constitute independent grounds for habeas-corpus relief.
Similarly, Kemp cannot establish prejudice for precluding federal review of his forced-medication claim. The forced medication of inmates in pretrial or trial settings has been recognized by the Supreme Court to violate a detainee's right to a fair trial under the Due Process Clause of the Fourteenth Amendment. See Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992). But, it has not yet been applied to the postconviction incarceration of inmates awaiting execution. See Fearance v. Scott, 56 F.3d 633 (5th Cir. 1995) (noting the position that "the question of whether forced medication to induce or ensure competence for execution has not been directly addressed by the United States Supreme Court.") Therefore, it is not "clearly established federal law, as determined by the Supreme Court" as required to support a grant of habeas-corpus relief under the AEDPA. See 28 U.S.C. § 2254 (d)(1).
In accordance with the foregoing analysis, a review of the merits of Kemp's first, second, and seventh claims for federal habeas-corpus relief is barred. Alternatively, if such claims were not barred, they would each be denied for lack of merit for reasons set forth in the cause-and-prejudice analysis above.
In his third claim for relief, Kemp contends that his rights to the effective assistance of counsel and to due process of law under the Sixth and Fourteenth Amendments were violated by the state habeas court's denial of his request for funds to obtain a mental health expert on the issue of his competency to be executed. (Pet., pp. 16-17.) As stated above, Kemp had no such constitutional right to the assistance of counsel in the state habeas process. See Coleman, 501 U.S. at 752-53; Jones, 171 F.3d at 277. He relies entirely upon the Supreme Court opinion in Ake v. Oklahoma, 470 U.S. 68, 82, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985) that recognized the right that an indigent criminal defendant possesses to such assistance in the preparation and presentation of a defense at his trial. However, this right has not been extended to include state post-conviction proceedings to determine a death row inmate's competency to be executed. See Caldwell v. Johnson, 226 F.3d 367, 373-74 (5th Cir. 2000). But even if it were now to be so extended, such a new rule would not avail Kemp in this federal habeas challenge to his state conviction and death sentence. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); 28 U.S.C. § 2254 (d)(1). Therefore, Kemp's third claim must be denied.
In Kemp's fourth and fifth claims, he contends that his rights to an impartial jury under the Sixth and Fourteenth Amendments were violated by the trial court's denial of his challenges for cause of two different venirepersons. His fourth claim alleges that the trial court improperly denied his challenge for cause of a venireperson who demonstrated racial prejudice against petitioner, a black man. His fifth claim alleges that the trial court improperly denied his challenge for cause of a venireperson who demonstrated bias in favor of death and against a life sentence. Kemp admits that each of these jurors did not ultimately serve on the jury because he removed them by the exercise of his peremptory challenges. (Pet., pp. 26, 42.)
In Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), the Supreme Court addressed a similar situation involving a defendant's exercise of a peremptory challenge to remove Darrell Huling, a venireperson that the trial court improperly failed to excuse for cause on the defendant's motion.
It is well settled that the Sixth and Fourteenth Amendments guarantee a defendant on trial for his life the right to an impartial jury. [ Wainwright v.] Witt, [ 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985)]; Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). Had Huling sat on the jury that ultimately sentenced petitioner to death, and had petitioner properly preserved his right to challenge the trial court's failure to remove Huling for cause, the sentence would have to be overturned. Adams [ v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)]. But Huling did not sit. Petitioner exercised a peremptory challenge to remove him, and Huling was thereby removed from the jury as effectively as if the trial court had excused him for cause.
Any claim that the jury was not impartial, therefore, must focus not on Huling, but on the jurors who ultimately sat.
(Emphasis added.) Id. In order to obtain relief on this claim, Kemp must show (I) that someone who "ultimately sat" on his jury did so in violation of his right to an impartial jury, and (2) that Kemp has properly preserved his right to challenge the trial court's failure to remove such juror for cause.
It appears that Kemp has properly preserved his right to challenge the trial court's failure to remove the challenged venirepersons. However, since both of these claims complain of venirepersons that did not "ultimately serve" on Kemp's jury, these claims fail to meet the first prong of the test set forth in Ross. Accordingly, Kemp's fourth and fifth claims are denied.
On direct appeal, the Texas Court of Criminal Appeals denied both of these claims, but apparently used a different analysis in so doing. In resolving the claim of a racially prejudiced venireperson, the state court held that any error "was cured by the trial judge's subsequent granting of three additional peremptory strikes to appellant." Kemp v. State, 846 S.W.2d 289, 296 (Tex.Crim.App. 1992). Even though this same reason would appear to apply to the claim that another venireperson was biased in favor of death, the state court found instead that the trial judge did not abuse his discretion in overruling appellant's challenge for cause. Id. at 298.
Kemp does not claim that the trial court repeatedly and deliberately misapplied the law in order to force him to use either of these peremptory challenges. See Ross, 487 U.S. at 91, n. 5; U.S. v. Martinez-Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). But even if he had, such relief is not yet a matter of clearly established federal law as determined by the Supreme Court. 28 U.S.C. § 2254 (d)(1). In Martinez-Salazar the Supreme Court also held that a federal defendant's exercise of peremptory challenges is not denied or impaired when he chooses to use one to remove a juror who should have been excused for cause. 528 U.S. at 317. Therefore, even if this claim was made under such similar lines, it would not avail Kemp.
Kemp's sixth claim for relief alleges that he is mentally incompetent to be executed under the Eighth and Fourteenth Amendments. (Pet., pp. 54-62.) In Ford v. Wainwright, 477 U.S. at 410, the Supreme Court held that the Eighth Amendment prohibits states from inflicting the penalty of death upon a prisoner who is insane. In addressing this claim, the Supreme Court noted that the "fundamental requisite of due process of law is the opportunity to be heard," Id. at 414, 424, and concluded that the federal district court was required to conduct an evidentiary hearing on the habeas review of Ford's claim. Even though different statutory language was in effect at the time, this requirement was grounded in the constitutional requirements of procedural due process applicable to competency determinations before execution. Therefore, the process afforded Kemp by the state habeas court in adjudicating his claimed incompetency to be executed must comply with these procedural-due-process requirements.
After noting the "full and fair hearing" requirement contained in the version of 28 U.S.C. § 2254 (d)(2) that existed at the time, Justice Powell (in the concurring opinion that made the plurality opinion that of the Court) stated,
At least in the context of competency determinations prior to execution, this standard is no different from the protection afforded by procedural due process. It is clear that an insane defendant's Eighth Amendment interest in forestalling his execution unless or until he recovers his sanity cannot be deprived without a "fair hearing." Indeed, fundamental fairness is the hallmark of the procedural protections afforded by the Due Process Clause.Id. at 424.
Even though the record does not reveal any opportunity for a hearing before the trial court entered its October 20, 1994, findings and conclusions, Kemp cannot complain of that failure because it resulted in his favor, however temporary. In these findings, the trial court determined that Kemp was then incompetent to be executed and recommended an indeterminate stay along with periodic reevaluations. (1st SHR, vol. 1, p. 204.) It was not until a different conclusion was reached after a subsequent reevaluation in November of 1997, that Kemp needed an opportunity to be heard on his claim of incompetency to be executed. The state record does not reveal any notice to Kemp or his attorneys of this adverse determination, nor does it reveal any hearing or further fact finding in the trial court on habeas review before the record was forwarded to the Texas Court of Criminal Appeals. Since the absence of any notice or opportunity to be heard on this factual issue would violate Kemp's procedural-due-process rights, an evidentiary hearing in this Court would be warranted. However, Kemp's petition itself raises a justiciability question concerning this claim.
In his petition, Kemp "acknowledges that the issue of his competency to be executed is not ripe for decision" because no execution date is pending. (Pet., p. 62.) Respondent did not address such contention in her answer. Since the issue in these claims is "not whether, but when" an execution should occur, (Emphasis in original) Ford, 477 U.S. at 425 (Powell, J., concurring), the Supreme Court has acknowledged the propriety of dismissing such a claim when a habeas petitioner's "execution was not imminent and therefore his competency to be executed could not be determined at that time." Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998); see also In re Davis, 121 F.3d 952, 953 (5th Cir. 1997) ("Our court denied the motion without prejudice as premature, because Davis' execution had not been scheduled.") If a federal habeas petitioner's competency cannot be determined at a time when his execution is not imminent, then such issue appears to have a very narrow window of review in federal court. Since Kemp's execution is not imminent, his competency to be executed is not a justiciable issue at this time. Therefore, Kemp's sixth claim for relief is DISMISSED as premature in accordance with Stewart v. Martinez-Villareal, 523 U.S. at 644.
Because this Court entered a stay of Kemp's execution before his petition was filed, no execution has been imminent at any time during this Court's consideration of such petition. Had Kemp chosen instead to file his petition before the scheduled execution date, such an issue could arguably have been considered ripe for a determination in this Court at such time. However, because such claim was never ripe for review at any time it was pending in this court, Kemp's petition has not presented this Court with a justiciable controversy on his claimed incompetence to be executed.
Kemp affirmatively represents that this claim is not ripe, and does not further contend that it falls within the exception to the mootness doctrine for cases that are capable of repetition, yet evading review. Such an exception could have applied since a reasonable argument could be made that (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. See Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 988, 40 L.Ed.2d 43 (1998). However, since Kemp does not take this position, the Court declines to do so sua sponte.
Having concluded that petitioner's sixth claim for relief should be dismissed as premature, and that each of his other claims for relief should be denied, it is, therefore, ORDERED that the sixth claim for relief in the petition for habeas corpus relief filed by Emanuel Kemp, Jr., be, and it is hereby, DISMISSED and that each of the remaining claims for relief in said petition be and they are all hereby DENIED.