IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 02-21257 _____________________

CRAIG NEIL OGAN, Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee. _________________________________________________________________

On Application for a Certificate of Appealability Appeal from the United States District Court for the Southern District of Texas No. 02-4331 _______________________________________ _________________________________________________________________

November 19, 2002

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

PER CURIAM:*

Petitioner-Appellant Craig Neil Ogan, who is scheduled to be

executed at 6:00 p.m. today, November 19, 2002, seeks a certificate

of appealability (“COA”) in order to appeal the Order of the United

States District Court for the Southern District of Texas denying

his Motion for Stay of Execution, Motion for Appointment of Counsel

and Motion for Constitutionally Adequate Determination of Mr.

Ogan’s Present Competency To Be Executed. Ogan’s motions to the

district court were premised on his argument that he is incompetent

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. to be executed under the standards set forth in Ford v. Wainwright,

(1986). We decline to issue a COA.

I

Ogan was convicted and sentenced to death for the capital

murder of a police officer. On direct appeal, Ogan challenged (1)

the sufficiency of the evidence demonstrating his deliberate

conduct in causing the officer’s death; (2) the sufficiency of the

evidence establishing his future dangerousness; and (3) the

effectiveness of his trial counsel at the penalty stage regarding

counsel’s requested jury instruction on mitigation. The Texas

Court of Criminal Appeals affirmed Ogan’s conviction and sentence.

On December 21, 1993, the United States Supreme Court denied Ogan’s

petition for a writ of certiorari.

In his initial state habeas application, Ogan claimed that his

trial counsel rendered ineffective assistance by failing to employ

a mitigation specialist and by failing to investigate his history

in an effort to discover mitigating evidence. In April 1999, the

Texas Court of Criminal Appeals denied habeas relief based on the

trial court’s findings and conclusions.

In his first federal habeas petition, filed on August 3, 1999,

and supplemented on December 30, 1999, Ogan sought relief on five

grounds: (1) insufficient evidence to sustain the jury’s

affirmative answer to the statutory punishment issue on deliberate

conduct; (2) insufficient evidence to sustain the jury’s

2 affirmative answer to the statutory punishment issue on future

dangerousness; (3) ineffective assistance of counsel based on trial

counsel’s limitation of the jury instruction on mitigation; (4)

ineffective assistance of counsel based on trial counsel’s failure

adequately to develop and present mitigating evidence; and (5)

Ogan’s purported incompetency to stand trial. Ogan did not raise

the claim that he was incompetent to be executed under the Ford

standard.

The district court rejected Ogan’s two insufficiency-of-the-

evidence claims regarding the special issues on the merits. The

district court also rejected Ogan’s claim of ineffective assistance

of counsel regarding the jury instructions on mitigating evidence.

The district court found that Ogan had failed to present his claim

of lack of competency to stand trial on direct review, or during

the state habeas proceedings and that he had failed to demonstrate

cause and prejudice for this failure. Nevertheless, the court

considered the claim on the merits and rejected it. The district

court also applied the procedural bar to Ogan’s claim that his

trial counsel was ineffective for failing to recognize the extent

of his mental health problems. The district court rejected Ogan’s

remaining “miscellaneous” ineffective assistance claims regarding

state trial and habeas counsel and the Texas state courts’

obligations to provide him with effective counsel. The court based

its rejection of these claims on either a procedural bar, the

3 merits, or both. The district court refused to grant a COA even

though Ogan had not yet requested one.

Ogan requested a COA from our court for the following claims:

(1) the state courts violated his rights to meaningful access to

the courts, equal protection, and due process by refusing to remedy

their earlier error of appointing him ineffective habeas counsel;

(2) he was incompetent to stand trial; (3) trial counsel rendered

ineffective assistance by failing to recognize the extent of his

mental health problems; and (4) trial counsel was ineffective in

failing to request an adequate and accurate jury instruction on

mitigating evidence and in failing to object to the “nullification

instruction” given by the trial court during the sentencing phase

of his trial. Our court denied a COA for each of those claims.

Ogan v. Cockrell,

(5th Cir. 2002), cert. denied, ___

U.S. ___ (U.S. Nov. 19, 2002) (No. 02-7261).

On August 1, 2002, the state court scheduled Ogan’s execution

for today, November 19, 2002. On November 15, 2002, Ogan filed a

successor application for writ of habeas corpus in the state trial

court. He argued that he is entitled to relief under Penry v.

Johnson,

(2001), because the “jury nullification”

instruction at the punishment phase of his trial violated the

Eighth, Fifth, and Fourteenth Amendments. He also argued that he

was incompetent to stand trial. Today, November 19, the Texas

Court of Criminal Appeals held that Ogan’s successor application

4 failed to satisfy the requirements of Art. 11.071, Sec. 5(a),

V.A.C.C.P. It therefore dismissed the application as an abuse of

the writ.

Today, Ogan has filed a number of last-minute requests for

relief in various courts. His application for stay of execution

filed in the Supreme Court of the United States was denied this

afternoon. Ogan v. Cockrell, ___ U.S. ___ (U.S. Nov. 19, 2002)

(No. 02-7261). As we have earlier stated, the district court also

denied his motion for stay of execution, motion for appointment of

counsel, and motion for constitutionally adequate determination of

his present competency to be executed.

In addition, Ogan today filed in the state trial court a

Motion to Seek Determination of Competency to Be Executed. In

support of that motion, Ogan relied on his mental health history,

including his inability to control his anger during his enlistment

with the Navy; his frequent arguments with his father; his referral

to a mental health worker when he started “acting crazy” in the

fourth grade; his frequent fights with other children; and his

discharge from the Navy after being diagnosed as having a passive

aggressive personality disorder. He attached to the motion the

Caldwell Report, which evaluated an MMPI conducted by a

psychiatrist, Dr. Fason, in 1990, prior to his trial. According to

the Caldwell Report, Ogan’s profile indicated a “paranoid

personality makeup with a currently borderline or overtly psychotic

5 state.” He also attached to the motion the records of his

evaluation by psychologists with the Texas Department of Criminal

Justice, Institutional Division, following his conviction. The

prison psychologists noted the same problems as Dr. Fason and noted

that Ogan was delusive as well. In addition, he attached to his

motion an affidavit of Dr. Paula Love, who made the following

conclusions based on her evaluation of Ogan’s records: Ogan

consistently displays thinking processes that are marred by

delusion; he has “unchangingly displayed symptoms of a paranoid

personality disorder”; she has “serious doubt about [Ogan’s]

ability to rationally relate events in which he displays

aggression”; and “he has a serious mental disorder that needs to be

explored.”

Finally, in support of his claim that he is presently

incompetent to be executed, Ogan relied on anecdotal evidence in

the form of affidavits by two defense investigators. Although

neither of those investigators is a mental health professional,

both of them stated that it is apparent to them that he is

seriously mentally ill. One of the investigators, Ms. Church,

stated that it was very difficult for her to have a rational

discussion with Ogan either about the offense or his sentence. She

stated further that Ogan “sees the world as a giant conspiracy to

kill him.” She concluded that, “[w]hile he understands that his

offense was the murder of Officer Boswell, his delusional system

6 makes him believe that he is innocent and that he killed the

officer because the officer was going to harm him, a belief

unsubstantiated by any facts.” The other investigator, Richard

Reyna, stated in his affidavit that he, too, believes that Ogan is

seriously mentally ill. Reyna concluded:

[I]t is impossible to carry on a coherent rational conversation with him.... [H]is responses to my questions make absolutely no sense; they are in no way responsive to the subject of my questions.... [H]e sees himself as the victim of a conspiracy, a conspiracy that includes his attorney and all who have been attempting to work for him. He cannot discuss any item except in terms of this conspiracy.... [H]e cannot accept or discuss his pending execution.... [W]hen I attempted to discuss final arrangements with him, he simply could not accept the fact that the execution was imminent or even a possibility.... [H]e doesn’t even understand why he is being executed, except that it is for the murder of Officer Boswell. He insists that the execution is the result of a conspiracy between his lawyers and the system and maintains that he is innocent, at least to the extent that the shooting was in self defense.

His behavior is what I would term paranoid and it is a state of mind that is deteriorating rapidly by the day. My review of his case establishes to my satisfaction that this paranoid response occurs whenever he is under stress and his impending execution makes this problem even more severe.

(Emphasis added.)

The motion refers to, but does not describe, an affidavit from

an attorney, Katherine Haenni, who has visited with Ogan. Ogan’s

motion for stay of execution filed in the district court states

7 that Ms. Haenni’s conclusions about Ogan’s mental health are

similar to the conclusions of Church and Reyna.

The motion requested that the state trial court appoint two

disinterested experts under the statute, TEX. CRIM. PRO. CODE ANN. §

46.05 (Vernon 2002) (setting forth the procedure for determining

competency to be executed), to evaluate Ogan and that counsel be

provided funds with which to obtain the services of their own

expert. Today, the state trial court denied the motion, finding

that Ogan failed to make a substantial showing of incompetency to

be executed.

Finally, as earlier stated, Ogan today filed in federal

district court a Motion for Stay of Execution, Motion for

Appointment of Counsel and Motion for Constitutionally Adequate

Determination of Mr. Ogan’s Present Competency To Be Executed.

Ogan argues that the state court process for determining his

competency to be executed did not comport with the minimum

standards of due process required by Ford v. Wainwright,

(1986), because the trial court refused to provide funds to

Ogan’s counsel to enable him to obtain the services of his own

mental health expert. The district court held that Ogan’s failure

to raise a Ford claim in his first federal habeas petition rendered

his current filing a successive petition for writ of habeas corpus,

and that Ogan could not file it in the district court until he had

“move[d] in the appropriate court of appeals for an order

8 authorizing the district court to consider the application.”

(3)(A) (2000). Therefore, the court denied Ogan’s

request for relief on the ground that it lacked jurisdiction.

The district court denied Ogan’s request for a COA on the

question of whether the court had jurisdiction to rule on his

claims. Ogan now appeals to this court seeking a COA on his

jurisdictional question.

II

Under the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”), a petitioner must obtain a COA before he can receive

full appellate review of the lower court’s denial of habeas relief.

See

(c)(1)(A) (2000) (“Unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be

taken to the court of appeals from the final order in a habeas

corpus proceeding in which the detention complained of arises out

of process issued by a State court.”). We may grant a petitioner’s

request for a COA only if he makes a “substantial showing of the

denial of a constitutional right.”

§ 2253(c)(2).

To make such a showing, Ogan must demonstrate that “reasonable

jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to

proceed further.” Dowthitt v. Johnson,

(5th Cir.

2000), cert. denied,

(2001) (quoting Slack v.

9 McDaniel,

(2000)). Where, as here, the

district court has denied the petitioner’s claim on procedural

grounds, the petitioner must demonstrate both that “jurists of

reason would find it debatable whether the petition states a valid

claim of the denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was

correct in its procedural ruling” in order to obtain a COA. Slack,

.

III

The district court’s procedural ruling in this case was that

it lacked the jurisdiction to consider Ogan’s request for relief

because he was presenting it as part of a successive habeas

petition without first getting permission to do so as required by

§ 2244(3)(A). As we have already stated, Ogan has previously filed

a petition for habeas relief in federal court; that petition was

denied. Therefore, the district court disposed of Ogan’s petition

on appropriate procedural grounds unless it would be debatable

among jurists of reason whether Ogan’s petition was actually a

successive petition within the meaning of the AEDPA.

The AEDPA does not define “second or successive.” However,

this court has held that a petitioner’s application is “second or

successive when it: (1) raises a claim challenging the

petitioner’s conviction or sentence that was or could have been

raised in an earlier petition; or (2) otherwise constitutes an

10 abuse of the writ.” United States v. Orozco-Ramirez,

(5th Cir. 2000). Ogan argues that this is not a successive

petition because he could not have raised the issue in his initial

habeas petition. He argues that, had he done so, the district

court would have been forced to dismiss his petition for containing

both exhausted and unexhausted claims. Rose v. Lundy,

(1982). Upon dismissal, he would have returned to state court and

the Court of Criminal Appeals would have again found his Ford claim

unripe. Ultimately, he argues that he would have been foreclosed

from raising any habeas petition at all until an execution date had

been set (thereby making his Ford claim ripe for appeal).

However, nothing in Rose says that an argument must have been

adjudicated to be found exhausted. Exhaustion requires only that

the state court be provided with a “fair opportunity” to consider

the claim. Duncan v. Henry,

(1995). If Ogan had

raised the claim in the state court and then presented his claim in

his original federal habeas petition, the district court could have

dismissed it as unripe without running afoul of Rose’s proscription

against mixed habeas petitions.

The Supreme Court has held that a petitioner who raises a Ford

claim in his original petition and then re-raises it in a later

petition once it is ripe for adjudication (because the execution

date is imminent) is not presenting a “second or successive”

petition within the meaning of § 2244. Stewart v. Martinez-

11 Villareal,

(1998). Instead, the Ford claim is

treated “in the same manner as the claim of a petitioner who

returns to a federal habeas court after exhausting state remedies.”

The Court left open the question of whether a petitioner who

did not present his Ford claim in his original petition, but raised

it later on, was raising it in a successive petition.

at 645

n.1.

However, the well-established law of this circuit is that a

petitioner who fails to raise his Ford claim in his original habeas

petition may not later raise it as part of a subsequent petition.

In re Davis,

(5th Cir. 1997). While the

vitality of Davis was questioned after Stewart, we recently

reconsidered Davis in the light of Stewart and reaffirmed the Davis

holding. Richardson v. Johnson,

(5th Cir.

2001).

In Richardson, we considered the argument that § 2244 should

not apply to Ford claims because they cannot become ripe until

execution is imminent. We noted that accepting such an argument

“would mean as a practical matter that no Ford claim would need to

be presented in a first filed habeas, given that state courts, in

part at our urging, now seldom set execution dates until after the

first round of appeals and habeas.” Id. at 259.

Furthermore, focusing on the first Slack inquiry -- whether

jurists of reason would find it debatable whether the petition

12 states a valid claim of the denial of a constitutional right --

like the petitioner in Richardson, Ogan here has pointed “to

nothing which shows that he is presently incompetent to be

executed.” Id. His last-minute motion for a competency

determination, filed today in the state trial court, relies

primarily on the affidavits of two defense investigators to support

his claim that he is presently incompetent to be executed. Reyna’s

affidavit, excerpts of which we have quoted previously, indicates

that Ogan “know[s] the fact of [his] impending execution and the

reason for it.” Ford v. Wainwright,

(Powell, J.,

concurring). The primary thrust of Ogan’s motions is an argument

that the state court’s procedure was unconstitutional because it

failed to permit him to be evaluated by his own expert. However,

we have previously determined that the statutory procedure under §

46.05 is constitutionally adequate and that the defendant has no

right to an expert of his own choosing. Caldwell v. Johnson,

(5th Cir.), cert. denied,

(2000).

IV

It is not debatable among jurists of reason whether Ogan was

presenting his Ford claim as part of a successive habeas petition.

Therefore, the district court properly refused to rule on Ogan’s

motions because he had failed to apply for permission to file a

successive petition as required by § 2244(3)(A). We deny his

request for a COA. To the extent that his request for a COA may

13 also be construed as a motion for stay of execution, it is also

denied.

14