IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 02-20320 _____________________

HILTON CRAWFORD

Petitioner - Appellant

v.

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION

Respondent - Appellee

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas No. H-00-3385 _________________________________________________________________ December 17, 2002

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Hilton Crawford appeals the decision by

the District Court for the Southern District of Texas denying his

request for a writ of habeas corpus on any of the sixteen grounds

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. he raised before that court. As the district court denied his

request for a certificate of appealability (COA), Crawford has

applied to this court for a COA on four of those issues. After

reviewing the district court’s thorough and reasoned treatment of

the case, as well as the briefs of the parties and the records of

earlier proceedings, we find Crawford’s application for a COA to

be without merit. As a result, we reject his application on all

grounds.

I. FACTS AND PROCEDURAL HISTORY

On September 12, 1995, twelve-year-old Samuel McKay Everett

was abducted from his home while his parents attended an Amway

meeting. When his father returned home, he found the door to the

house open. Soon thereafter, a woman called demanding $500,000

ransom. Mr. Everett called 911, his wife, and Crawford, who was

a friend of the family who had previously served as the county’s

deputy sheriff.

Neighbors reported that, during the meeting, a vehicle

matching the description of Crawford’s car was parked in the

driveway to the Everett’s house. The FBI, upon inspecting

Crawford’s car, noted that it had recently been cleaned; a

further examination revealed blood stains in the trunk and on the

driver’s side. The investigation also uncovered a friend who had

unwittingly helped Crawford clean Samuel’s blood from the trunk,

as well as the woman who made the ransom demand. She implicated

Crawford as the killer.

2 Crawford was arrested. Although he was able to provide

police with a detailed map to the place in Louisiana where the

body was buried, he maintained his innocence as to the murder.

Crawford claimed that an individual named “R. L. Remmington” had

planned and committed the kidnapping and murder. The police were

unable to verify Remmington’s existence. Crawford confessed to

the crime, twice, on videotape. Each time, he admitted to having

participated in the kidnapping and murder but blamed the actual

killing on Remmington. An investigation into Crawford’s

financial status uncovered both financial difficulties and

Crawford’s knowledge that any ransom paid for Samuel would be

covered by the Everett’s insurance policy.

On September 20, 1995, Crawford was indicted for capital

murder for shooting Samuel during the course of a kidnapping.

Because, when the police discovered the body, the extent of

decomposition made it impossible to determine whether the boy had

died from the gunshot or from multiple severe head traumas, the

indictment was later amended to include death by striking the

victim in the head. On July 19, 1996, a jury convicted Crawford

of capital murder. During the punishment phase, the jury

returned answers to the special verdicts that mandated a sentence

of death.

In 1999, the Texas Court of Criminal Appeals affirmed

Crawford’s conviction. Crawford v. State, No. 72,611 (Tex. Crim.

App. 1999) (unpublished op.). The United States Supreme Court

3 denied his petition for writ of certiorari. Crawford v. Texas,

(1999).

As required by Texas law, Crawford filed his petition for

state collateral review while his direct appeal was pending. On

July 17, 1998, John Quinn, Crawford’s habeas attorney, filed a

petition for habeas relief in state court; he raised thirteen

issues, each of which he had also raised on direct appeal. While

this petition was pending, Roy Greenwood, one of Crawford’s

current attorneys, filed a motion to be appointed as co-counsel

and to strike all of the habeas pleadings that had been filed by

Mr. Quinn. Mr. Greenwood argued that the new pleadings were

required because Mr. Quinn failed to present any claims that were

not already being considered on direct appeal.

On November 20, 1998, the state habeas court entered

findings of fact and conclusions of law recommending that

Crawford’s original petition for habeas relief (the one filed by

Mr. Quinn) be denied. On March 19, 1999, the Court of Criminal

Appeals found that recommendation supported by the record and

denied the application. Ex parte Crawford, No. 40,439-01 (Tex.

Crim. App. 1999). The Court of Criminal Appeals later dismissed

Mr. Greenwood’s supplemental application, finding it to be a

subsequent habeas petition that did not satisfy the requirements

for acceptance. See TEX. CRIM. PROC. CODE ANN. § 11.071(5) (Vernon

2002) (stating that a subsequent petition for habeas relief will

4 be considered only where the petitioner overcomes three stringent

procedural and substantive hurdles).

Crawford timely filed a petition for habeas relief in the

district court on September 27, 2000; he filed an amended

petition two months later. The State moved for summary judgment

on all of Crawford’s claims. In a thorough, careful opinion, the

district court granted the State’s motion for summary judgment

and declined Crawford’s application for a COA on any of the

issues presented.

II. APPLICABLE LAW

Crawford comes to this court seeking a COA on four of the

issues considered and rejected by the district court. As he

filed his habeas petition in 2000, the Anti-Terrorism and

Effective Death Penalty Act (AEDPA) governs our review of this

case. See Lindh v. Murphy,

(1997) (stating

that the AEDPA applies to all cases pending as of April 24,

1996). Under the AEDPA, Crawford must obtain a COA before he may

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 the petitioner’s request for a COA only if he

has made a “substantial showing of the denial of a constitutional

5 right.”

§ 2253(c)(2). To make such a showing, Crawford 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. McDaniel,

(2000)). Where the district court has denied the petitioner’s

claim on procedural grounds, to obtain a COA 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.” Slack,

.

Our review of whether Crawford has made a “substantial

showing of the denial of a constitutional right” is also

constrained by the applicable AEDPA standards of review. Moore

v. Johnson,

(5th Cir. 2000), cert. denied,

(2001). On questions of law, the state court’s

conclusions will not be disturbed unless they were “contrary to,

or an unreasonable application of, clearly established” Supreme

Court precedent.

(d)(1) (2000). Furthermore,

the state court’s findings of fact are presumed correct unless

rebutted by clear and convincing evidence.

§ 2254(e)(1).

III. CRAWFORD’S CLAIMS ON APPEAL

6 Crawford raises four claims rejected by the district court

as potential grounds for a COA: (1) ineffective assistance of

counsel during the state habeas proceeding in violation of the

Due Process Clause of the Fourteenth Amendment; (2) “fraud” by

his state habeas counsel permitting review of the court’s rulings

under FED. R. CIV. P. 60(b); (3) an Eighth Amendment violation

arising out of the trial court’s decision not to instruct the

jury on parole eligibility; and (4) an equal protection claim on

the same grounds as (3).

A. Ineffective Assistance of Habeas Counsel

Crawford argues that his original habeas counsel, Mr. Quinn,

was constitutionally ineffective because he filed a petition

containing only issues that were already being considered on

direct appeal. Crawford identifies several potential issues that

Mr. Quinn should have argued on collateral review, including

trial counsel’s lack of qualifications as a criminal attorney and

trial counsel’s ineffective assistance during the voir dire,

guilt/innocence, and punishment stages of the trial. Crawford

also notes that trial counsel should have, but failed to,

challenge the subject matter jurisdiction of the trial court; he

reasons that, because the body was discovered in Louisiana and no

proof was ever had that the murder was committed in Texas, only a

Louisiana state court could properly have had jurisdiction over

his case.

7 The district court considered the questions of habeas

counsel’s competency – except for the jurisdictional question,

which Crawford raises in this appeal for the first time – and

found them to be procedurally barred. Alternatively, the

district court found that Crawford’s claims about the competency

of habeas counsel are not cognizable under

(i).

Crawford presents no new argument as to why the Court of

Criminal Appeals erred in rejecting his successive habeas

petition as procedurally barred or why the district court erred

in finding that his claims about the competency of habeas counsel

are not cognizable under § 2254(i). As for the jurisdictional

issue, Crawford may not raise it for the first time in this

court. See, e.g., Johnson v. Puckett,

(5th

Cir. 1999) (“[A] contention not raised by a habeas petitioner in

the district court cannot be considered for the first time on

appeal from that court’s denial of habeas relief.”).

Crawford has failed to demonstrate that jurists of reason

would find the district court’s resolution of either issue

debatable. Therefore, he has not made a substantial showing of

the denial of a constitutional right, and we decline to grant a

COA.

B. “Fraud on the Court”

As his second ground, Crawford argues that the district

court should have set aside the decision by the Court of Criminal

8 Appeals that denied relief on his original writ application. He

asserts that a federal court can set aside a fraudulently induced

state court judgment under FED. R. CIV. P. 60(b) if the fraud

amounted to the denial of a federal right. Crawford contends

that a “fraud on the court” was committed when Mr. Quinn filed,

as his original habeas application, what amounted to nothing more

than a carbon copy of Crawford’s petition for direct appeal.

While noting that the claim was potentially unexhausted, the

district court nevertheless denied it on the merits. See

§ 2254(b)(2) (2000) (“An application for a writ of habeas corpus

may be denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts of the

State.”). The court remarked that Crawford failed to demonstrate

that Mr. Quinn’s actions constituted a “fraud on the court,” let

alone that his actions amounted to the denial of a federal right.

Further, the court noted that granting relief on the basis of

Rule 60(b) would “transgress the principles of comity and

federalism entrenched in the AEDPA.” The court concluded that

Crawford’s attacks ultimately amounted to a challenge to the

state habeas proceeding itself, a challenge foreclosed by Fifth

Circuit precedent. See Rudd v. Johnson,

(5th Cir.), cert. denied,

(2001) (noting that “[a]

long line of cases from our circuit dictates that infirmities in

state habeas proceedings do not constitute grounds for relief in

federal court”) (internal quotation omitted).

9 Crawford raises no new arguments on this appeal that call

into question the district court’s analysis of this issue.

Because he has failed to demonstrate that reasonable jurists

might find the district court’s assessment of the constitutional

claims debatable, we decline to issue a COA on this issue.

C. Lack of Parole Instruction at Sentencing

Crawford next claims that the trial court’s refusal to

instruct the jury regarding the implications of deciding against

the death penalty constituted an Eighth Amendment violation. He

contends that, because he would not have been eligible for parole

until he was ninety-six years old, a decision not to choose the

death sentence would effectively constitute a sentence of life

without the possibility of parole, thereby entitling him to a

parole ineligibility jury instruction. See Simmons v. South

Carolina,

(1994) (holding that, in states where the

alternative sentence to death is life without parole, the jury

must be informed of that fact as a potential mitigating factor).

He also argues that, because the trial judge had discretion over

whether to instruct the jury on the parole issue, similarly

situated defendants were not treated alike; according to

Crawford, this unequal treatment violated the Equal Protection

Clause.

The district court rejected this claim as having been raised

and correctly disposed of on the merits by the Court of Criminal

10 Appeals. Crawford fails to show that the state court’s denial of

relief on this claim involved an unreasonable application of

clearly established federal law as determined by the Supreme

Court. See, e.g., Rudd,

(finding Texas

sentencing scheme, where life without parole is not the

alternative to a death sentence, not to fall within the scope of

Simmons). As to the equal protection challenge, Crawford again

fails to show that the state court’s denial of relief involved an

unreasonable application of clearly established federal law as

determined by the Supreme Court. See, e.g., Green v. Johnson,

(5th Cir. 1998) (holding that, because

capital defendants are not a suspect class, the Texas sentencing

scheme is constitutional because a “state may rationally conclude

that its capital sentencing scheme would be better served by not

requiring that courts inform juries of parole considerations”).

Once again, Crawford fails to demonstrate any errors of law

or logic in the district court’s analysis of either the Eighth

Amendment or equal protection challenges to the Texas system.

Because he has failed to make a substantial showing of the denial

of a constitutional right, we decline to issue a COA on either of

these two grounds.

IV. CONCLUSION

Crawford’s request for a COA on each of the issues he has

raised is DENIED.

11