UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 99-10054 _____________________

JAMES EDWARD CLAYTON,

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 (1:98-CV-201) _________________________________________________________________

October 1, 1999

Before KING, Chief Judge, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

PER CURIAM:*

James Edward Clayton, sentenced to death for capital murder,

requests a certificate of appealability (COA) from denial of his

habeas application. DENIED.

I.

The Texas Court of Criminal Appeals affirmed Clayton’s 1988

conviction and death sentence for the 1987 murder of Lori Barrett,

which, inter alia, included kidnaping. Clayton v. State, No.

70,764 (Tex. Crim. App. Jan. 27, 1993) (unpublished). The Supreme

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Court of the United States denied certiorari. Clayton v. Texas,

(1993).

In December 1997, the trial court entered findings of fact and

conclusions of law, recommending that state habeas relief be

denied; the Court of Criminal Appeals denied relief in January

1998, holding that the findings and conclusions were supported by

the record.

Clayton sought federal habeas relief that September. The

district court denied it and a COA.

II.

The Antiterrorism and Effective Death Penalty Act of 1996,

Stat. 1214 (AEDPA) applies, because Clayton

filed his federal habeas petition subsequent to its enactment, see

Green v. Johnson,

(5th Cir. 1997).

Accordingly, the district court having denied a COA, Clayton must

obtain it from our court.

(c)(1)(A).

A COA requires “a substantial showing of the denial of a

constitutional right”,

(c)(2): “the applicant

[must] ‘demonstrate that the issues are debatable among jurists of

reason; that a court could resolve the issues (in a different

manner); or that the questions are adequate to deserve

encouragement to proceed further’”. Drinkard v. Johnson,

(5th Cir. 1996) (emphasis in original; quoting Barefoot v.

Estelle,

, 893 n.4 (1983)), cert. denied,

(1997), overruled in part on other grounds, Lindh v. Murphy,

(1997).

- 2 - For a state prisoner, such as Clayton, habeas relief may not

be granted under AEDPA

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.

(d).

“[P]ure questions of law and mixed questions of law and fact

are reviewed under § 2254(d)(1), and questions of fact are reviewed

under § 2254(d)(2)”. Corwin v. Johnson,

(5th

Cir.), cert. denied, ___ U.S. ___,

(1998). As

noted, and pursuant to § 2254(d)(1), in reviewing a question of

law, we defer to the state court’s ruling, unless its “decision

rested on a legal determination that was contrary to ... clearly

established federal law as determined by the Supreme Court”. See

Lockhart v. Johnson,

(5th Cir.) (internal quotation

marks and citation omitted), cert. denied,

(1997).

Likewise, we “will not disturb a state court’s application of law

to facts unless the state court’s conclusions involved an

‘unreasonable application’ of clearly established federal law as

determined by the Supreme Court”. Davis v. Johnson,

(5th Cir. 1998) (quoting

(d)(1)), cert. denied,

___ U.S. ___,

(1999); Lockhart,

.

- 3 - Such “application of federal law is unreasonable only when

reasonable jurists considering the question would be of one view

that the state court ruling was incorrect”. Davis,

(internal quotation marks and citation omitted). And, for §

2254(d)(2) (unreasonable determination of facts vel non), state

court factual findings are presumed correct unless rebutted by

clear and convincing evidence.

(e)(1); see Davis,

.

Clayton contests applying these AEDPA standards of review. In

any event, he claims COA entitlement on each of the following

bases: (1) his rights under Ake v. Oklahoma,

(1985),

were violated, based on his assertions (a) that his court-appointed

pathology expert was incompetent and (b) that his court-appointed

psychiatric expert, Dr. Griffith, testified against him at the

punishment phase on future dangerousness; (2) the State failed to

present sufficient venue evidence; (3) prosecutorial misconduct

deprived him of a fair trial; (4) the State knowingly concealed

exculpatory evidence; (5) his Fourth Amendment rights were

violated; and, (6) contrary to Estelle v. Smith,

(1981), he was not warned that the results of psychiatric

examinations could be used against him at the punishment phase.

A.

In rejecting AEDPA’s standards of review, Clayton asserts that

his claims were not “adjudicated” by the state courts. For those

claims raised on direct appeal, he maintains that the factual basis

for the Court of Criminal Appeals’ decision was incorrect, and that

- 4 - it cited facts not in the record. For those claims raised for

state habeas, he maintains that the result was unreliable,

asserting that the state courts failed to follow applicable

procedures, including denying him discovery, investigative

assistance, and an evidentiary hearing, and adopting the State’s

proposed findings and conclusions, without giving him an

opportunity to challenge them.

In determining whether a state court’s habeas disposition is

on the merits, we consider the following factors:

(1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state courts’ opinions suggest reliance upon procedural grounds rather than a determination on the merits.

Mercadel v. Cain,

(5th Cir. 1999) (quoting Green

v. Johnson,

).

The merits of Clayton’s claims regarding Dr. Griffith’s

testimony, venue, and the Fourth Amendment were adjudicated on

direct appeal. For habeas, although the state trial court

concluded that, therefore, those claims should not be relitigated

in post-conviction proceedings, it nevertheless addressed them on

the merits.

Likewise, with respect to the remaining habeas claims

(incompetent pathology expert, prosecutorial misconduct,

concealment of exculpatory evidence, and lack of warnings by the

psychiatrists), the trial court concluded that those issues “should

not be considered” because they could have been, but were not,

- 5 - raised on direct appeal. But, it also addressed them on the

merits.

Accordingly, we conclude that AEDPA’s standards of review are

applicable to the state courts’ merits determinations. Based on

our review of the record and the briefs, Clayton’s procedural

complaints concerning the state courts do not alter this

conclusion.

B.

In Ake v. Oklahoma,

, the Supreme Court discussed

situations in which a criminal defendant is entitled to the

appointment of a competent psychiatric expert to conduct an

appropriate examination and to assist in evaluation, preparation,

and presentation of the defense. Clayton maintains that his Ake

rights were violated in two ways: his court-appointed pathologist

was incompetent; and his court-appointed psychiatrist testified

against him at the punishment phase.

1.

Dr. Erdmann was Clayton’s court-appointed pathology expert at

trial (cause and site of death). Relying on evidence discovered in

the ten years since trial, including that Dr. Erdmann falsified

autopsy reports, lied about his credentials and background, and was

convicted of tampering with evidence during his tenure as a medical

examiner, Clayton contends that Dr. Erdmann was not competent to

assist him.

Clayton did not raise this issue on direct appeal. In the

state habeas proceeding, the trial court found that there was no

- 6 - reason to doubt Dr. Erdmann’s qualifications at the time of

Clayton’s trial; that his assistance was beneficial to Clayton; and

that Clayton had not shown that Dr. Erdmann’s involvement was

harmful.

Assuming both that Ake applies not only to psychiatrists, but

also to pathology experts, see Yohey v. Collins,

(5th Cir. 1993) (“non-psychiatric experts ... should be provided

only if the evidence is ‘both “critical” to the conviction and

subject to varying expert opinion’”) (quoting Scott v. Louisiana,

(5th Cir. 1991)), and that it can be applied to

this habeas claim, see Teague v. Lane,

(1989), Clayton

does not explain how Dr. Erdmann’s misconduct subsequent to that

trial had any bearing on his performance at that trial. Nor does

Clayton cite any specific instance in which Dr. Erdmann’s

assistance to him was incompetent or how any claimed incompetence

was harmful. See Fuller v. Johnson,

(5th

Cir.), cert. denied, ___ U.S. ___,

(1997); Boyle v.

Johnson,

(5th Cir. 1996), cert. denied,

(1997).

Because Clayton has not made a substantial showing of the

denial of a constitutional right, his COA request on this claim

fails.

2.

Clayton contends that Dr. Griffith, a forensic psychiatrist,

was appointed as a defense expert, but testified as a witness for

the State at the punishment phase, in violation of his due process

- 7 - rights under Ake. Ake holds that, “in the context of a capital

sentencing proceeding, when the State presents psychiatric evidence

of the defendant’s future dangerousness ...[,] due process requires

[that the defendant be provided with] access to a psychiatric

examination on relevant issues, to the testimony of the

psychiatrist, and to assistance in preparation at the sentencing

phase”.

.

On 22 February 1988, prior to trial, the State moved for a

psychiatric examination of Clayton regarding future dangerousness.

At a hearing on 1 March, Clayton’s counsel requested appointment of

a separate psychiatric expert for the defense. On 11 March, the

trial court appointed Dr. Grigson, who reported to the court on 1

April that Clayton was a severe sociopath and that there was a

probability that he would commit criminal acts of violence in the

future.

That July, the court entered an order, upon “motion of the

Defendant”, appointing Dr. Griffith to examine Clayton and report

to the court on Clayton’s mental competency to stand trial and his

sanity at the time of the offense. The court further ordered, “at

the Defendant’s request”, that Dr. Griffith report to the court on

Clayton’s future dangerousness.

At the punishment phase, after it had presented the testimony

of Dr. Grigson on future dangerousness, the State called Dr.

Griffith as a witness. Clayton made a narrow objection, asserting

only that Dr. Griffith was an agent of the defense and had

consulted with Clayton and his counsel; and that allowing him to

- 8 - testify would violate the attorney-client privilege. (In short,

Clayton’s counsel did not object that Clayton was being deprived of

his rights under Ake.) The State countered that Dr. Griffith was

not an agent of the defense; and that the attorney-client privilege

was not applicable.

Although it overruled the objection, the court ruled that Dr.

Griffith would not be allowed to testify about conversations with

Clayton or his counsel. In response to a hypothetical question

based on the facts of Clayton’s case (not objected-to as to form),

Dr. Griffith testified that the hypothetical individual probably

would commit acts of violence in the future. Next, Dr. Griffith

was examined by Clayton’s counsel regarding the prospects for

rehabilitation of such a hypothetical individual.

The Court of Criminal Appeals rejected this claim on direct

appeal, holding that Dr. Griffith was not a defense expert; that

instead, he was an appointed psychiatrist for the court. Clayton

v. State, slip op. at 26-27. The court stated further that he did

not testify regarding communications with Clayton or his counsel,

or Clayton’s future dangerousness, but responded instead to a

hypothetical, albeit one based on the facts of this case. Id. at

27.

Likewise, in the state habeas proceeding, the trial court

found that Dr. Griffith was not appointed as an expert witness for

Clayton. It concluded, inter alia, that he testified only by

response to hypothetical questions; and that his testimony did not

violate the attorney-client privilege because he did not disclose

- 9 - confidences or information gleaned from his examination of Clayton.

Clayton fails, especially in the light of his narrow objection

at trial, to articulate, much less demonstrate, how his rights

under Ake were violated. In any event, he is not entitled to a COA

on this issue: he has not demonstrated by clear and convincing

evidence that the state courts erred by finding that Dr. Griffith

was not a defense expert; and he has not made a substantial showing

that the state courts’ legal conclusions were contrary to, or

involved an unreasonable application of, federal law.

C.

Clayton asserts that the State presented no evidence that

venue was proper in Taylor County, Texas, where Clayton and the

victim had resided in close proximity; that, instead, it was proper

in Jones County, where the victim’s body was found; and that,

therefore, his Sixth and Fourteenth Amendments rights were

violated.

This claim was rejected on direct appeal, on the basis that

sufficient evidence supported the jury’s finding that the crime, or

some portion of it, occurred in Taylor County (again, where the

victim and Clayton resided). Clayton v. State, Slip Op. at 5-8.

The state habeas court also rejected the claim, finding that some

of the elements of the offense (burglary, robbery, and kidnaping)

occurred there.

Clayton has not made a substantial showing that the state

courts’ factual findings are unreasonable or that their legal

conclusions are contrary to, or involved an unreasonable

- 10 - application of, federal law. The State presented considerable

evidence that at least a portion of the crime was committed in

Taylor County, including a neighbor’s testimony that she heard

screams coming from the victim’s home on the night she disappeared;

the coroner’s testimony that the victim was tied with electrical

cords while still alive; evidence of the discovery of an electrical

cord in Clayton’s apartment and a curling iron missing its

electrical cord in the victim’s home; the discovery of an earring

and a pair of shoes in the victim’s home and a belt in a dumpster

near Clayton’s apartment, matching what the victim had worn on the

night of her disappearance; the discovery in Clayton’s apartment of

an insurance card bearing the victim’s name; and evidence of forced

entry into the victim’s home.

Because Clayton has not made a substantial showing of the

denial of a constitutional right, he is not entitled to a COA on

this issue.

D.

Clayton’s claim that prosecutorial misconduct denied his right

to a fair trial is premised on the fact that the first attorney

appointed to represent him withdrew upon being appointed a state

judge, and was subsequently employed by the district attorney’s

office. Because of that conflict, the trial court disqualified the

district attorney’s office and appointed as a special prosecutor

Taylor County’s former district attorney (who held that office at

the time of Clayton’s arrest), who had resigned to run for state

judge. (The disqualification was later ruled to be an abuse of

- 11 - discretion. State ex rel. Eidson v. Edwards,

(Tex.

Crim. App. 1990).)

Clayton asserts that the special prosecutor’s previous role as

district attorney, his political agenda, his use of an office in

the district attorney’s offices, and his use of the services of

Clayton’s former counsel’s investigator to interview jurors,

“constituted a conflict of interest on the part of all parties

involved”, and deprived him of a fair trial.

Clayton did not raise this issue on direct appeal. For state

habeas, the trial court found that no prosecutorial misconduct

occurred, and concluded that Clayton was not harmed by any of the

challenged conduct.

Clayton has not rebutted the presumption of correctness of

these factual findings, and has not made a substantial showing that

the legal conclusions were contrary to, or involved an unreasonable

application of, federal law. The special prosecutor’s use of an

office and telephone near Clayton’s former counsel, and the use of

the services of Clayton’s former counsel’s investigator, do not

establish an impermissible conflict. Moreover, even assuming such

a conflict exists, Clayton has not shown how he was prejudiced.

See United States v. Cardenas,

(5th Cir.

1985).

Because Clayton has not made a substantial showing of the

denial of a constitutional right, he is not entitled to a COA on

this claim.

E.

- 12 - Clayton next claims that the trial court and prosecutors

denied him access to exculpatory evidence. He gave statements to

police that, on the night and morning following the victim’s

disappearance, someone whom he knew only as “Andy” was with him and

the victim at his residence. Clayton requested any information

obtained by the State in its investigation of “Andy”; the State

responded that it had no exculpatory evidence.

Therefore, Clayton asked the court to review the information

in camera. Clayton asserts that the record does not reveal whether

the court did so; and that the court did not make such evidence

part of the record on appeal.

Clayton did not raise this claim on direct appeal. In the

state habeas proceedings, the state trial court rejected the claim,

holding that the State did not conceal exculpatory evidence

regarding “Andy”; and that evidence regarding “Andy” was turned

over by the State to the court and was not exculpatory.

Clayton has not rebutted the presumption of correctness of the

state court’s factual findings, and has not made a substantial

showing that its legal conclusions were contrary to, or involved an

unreasonable application of, federal law. The purported evidence

about “Andy” originated from Clayton’s own statements to the

police. Clayton does not even assert that any exculpatory evidence

exists; he asserts, without explanation, that he “has reason to

believe that there was more evidence regarding ‘Andy’ than was

turned over to the defense, and possibly to the judge for

inspection”.

- 13 - Obviously, such speculation falls far short of the required

substantial showing of the denial of a constitutional right.

Clayton is not entitled to a COA on this issue.

F.

Clayton contends that his warrantless arrest was illegal under

Texas law and that, therefore, his statements to the police and all

of the evidence seized from his apartment, including the murder

weapon, should have been suppressed.

“[W]here the State has provided an opportunity for full and

fair litigation of a Fourth Amendment claim, a state prisoner may

not be granted federal habeas corpus relief on the ground that

evidence obtained in an unconstitutional search or seizure was

introduced at his trial”. Stone v. Powell,

(1976). Clayton does not claim, nor does the record reflect, that

he did not have a full and fair opportunity in state court to

litigate this Fourth Amendment claim.

Accordingly, Clayton is not entitled to a COA on this claim

because he has not made the requisite substantial showing of the

denial of a constitutional right.

G.

Clayton was examined pre-trial by the two earlier-described

psychiatrists, Drs. Grigson and Griffith. At the punishment phase,

Dr. Grigson testified that he was absolutely certain that Clayton

would be involved in future criminal acts that would present a

threat to society. And, as discussed, Dr. Griffith testified, in

- 14 - response to the hypothetical question, that, in the future, the

hypothetical individual probably would commit acts of violence.

A criminal defendant has a constitutional right to be informed

that statements made during a court-ordered psychiatric examination

can be used against him at the punishment phase on the issue of

future dangerousness. Vanderbilt v. Collins,

(5th Cir. 1993) (citing Estelle v. Smith,

(1981)).

Lacking such warning, “the subsequent use of the [psychiatrist’s]

testimony against [the defendant] for that purpose [is] a violation

of his fifth amendment rights”.

Clayton contends that there

is “no evidence” he was so warned.

Clayton did not raise this claim on direct appeal. In the

state habeas proceeding, the state trial court found that Clayton

had not shown a lack of such warnings and did not so object at

trial; and held that the claim was procedurally barred because

Clayton failed to object.

Clayton has made no attempt to overcome this bar. See Coleman

v. Thompson,

(1991) (when “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”); Corwin v. Johnson,

(Texas’

- 15 - “contemporaneous objection rule” is strictly and regularly applied

to similar claims and is, therefore, an adequate procedural rule).

In any event, Clayton does not claim that the requisite

warnings were not given, only that there is no evidence that they

were. The state trial court found that Clayton had not

demonstrated that warnings were not given. Clayton has not

rebutted that finding by clear and convincing evidence.

Clayton is not entitled to a COA on this claim.

III.

For the foregoing reasons, Clayton’s COA application is

DENIED.

- 16 -