Sammie Felder, Jr., Petitioner-Appellant,
v.
O.L. Mccotter, Director, Texas Department of Corrections, Respondent-Appellee.

No. 84-2336

Federal Circuits, 5th Cir.

August 23, 1985

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, JOLLY and DAVIS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

After counsel for a person who has been charged with and arrested for a criminal offense has directed the police not to interrogate the accused in the absence of counsel, a confession elicited from the accused by police questioning in counsel's absence is inadmissible even though the police have given him a Miranda warning. The accused's response to the questioning is not a waiver of his previously-asserted right to the assistance of counsel. We, therefore, hold that the accused's sixth amendment right to counsel in this capital case was violated by the admission of a confession thus obtained and that the admission of the confession elicited by this violation was not harmless. Accordingly, we reverse the district court judgment denying his application for habeas corpus and remand for issuance of the writ unless the State shall commence a new trial within ninety days after the issuance of our mandate.

I.

James Hanks, a quadraplegic, was brutally killed in the course of a robbery committed in Houston, Texas. Almost a month later, on April 11, 1975, a Houston police officer filed an affidavit and felony complaint in the Harris County Justice of the Peace court charging Sammie Felder, Jr., with capital murder.1 On the same day the Texas court issued a fugitive warrant for Felder's arrest.

Three days later, Idaho police stopped Felder in Idaho Falls, Idaho, for a minor traffic offense, but arrested him when he refused to produce a driver's license and gave the police a false name. They then gave Felder a Miranda warning. The same day they discovered the Texas fugitive warrant and held Felder on it pending extradition proceedings. The next day, Felder was arraigned on the fugitive warrant before an Idaho court in Bonneville County, Idaho. The court appointed a member of the local bar, R. John Insinger, Esq., to represent Felder.

Insinger consulted with Felder almost daily. He explicitly instructed the Idaho police not to question Felder about any of Felder's legal affairs unless he was present, and the police agreed. The Idaho police complied with the agreement; when they wished to question Felder about a reported murder in Denver, apparently unrelated to the Texas offense, they notified Insinger, who agreed to the interrogation and was present during it.

Members of the Houston police department also knew that Insinger represented Felder. Houston police officers spoke to Insinger twice by telephone in an effort to secure his cooperation in the extradition proceedings and a waiver of extradition in exchange for a possible plea concession. Felder, on Insinger's advice, waived extradition.

Several days later, on April 23, 1975, a Houston police officer, J.W. Clampitte, who personally knew that a lawyer had been appointed to represent Felder, came to Idaho and, after giving Felder the Miranda warning, questioned him about the Texas charge. The interview was initiated by Clampitte without notice to Insinger, who did not consent to it and was not present. Clampitte obtained an oral and then later a written confession, the first paragraph of which recited the Miranda warning. Felder was then transported to Texas, where he was later indicted by the grand jury and tried for capital murder.

At Felder's trial, the Texas court ruled that Felder's confession was voluntary and admissible. Felder was convicted and sentenced to death in 1976. His appeal was denied by the Texas Court of Criminal Appeals in 19782 and his petition for a writ of certiorari was thereafter denied.3

Felder's execution was then scheduled. He thereafter filed petitions for habeas corpus in the Harris County district court and in the Texas Court of Criminal Appeals. The lower court recommended denial of the petition and denied a request for a stay of Felder's execution. The Court of Criminal Appeals later denied both a stay of execution and the habeas corpus petition. Neither court afforded petitioner an opportunity to be heard.

Felder then filed a federal habeas corpus petition in the United States District Court for the Southern District of Texas (Houston Division). On the same day, that court granted a stay of execution which is still in effect.

Because Felder had not exhausted his state remedies with respect to some of the claims asserted in the federal petition, he moved to dismiss his petition without prejudice so that the claims might be considered in the first instance by the state courts. The district court granted Felder's motion to dismiss, but this court reversed and remanded to the district court with instructions to proceed to the merits of the petition because the state had waived exhaustion.4 This court's mandate issued on January 12, 1983. No further hearing of any kind was held in the district court. On April 24, 1984, the district court filed an opinion denying Felder's habeas corpus petition.

II.

The sixth amendment to the Constitution, made applicable to the states by the fourteenth amendment,5 guarantees the accused in all criminal prosecutions the right "to have the assistance of counsel for his defense." This right, as the Supreme Court has reminded us in Brewer v. Williams, "is indispensable to the fair administration of our adversary system of criminal justice" and is "vital ... at the pretrial stage."6

We look to state law to determine when adversarial proceedings against the accused have commenced, implementing the sixth amendment right to counsel.7 Here, as in Brewer, there can be no doubt that judicial proceedings had been initiated against Felder before Clampitte interrogated him. The filing of an affidavit and criminal complaint in a Justice of the Peace court constitutes the institution of formal judicial criminal proceedings in Texas.8

Clampitte knew a lawyer had been appointed to represent Felder. He testified, "the Sheriff's department there [in Idaho] had advised me he had been represented by an attorney prior to my arriving." Officer Clampitte asked Felder during interrogation whether he had conferred with a lawyer, and Felder said "yes." The state relies on a statement by the state trial court that Clampitte "understood" a lawyer had been appointed only to advise Felder about extradition, but Insinger's appointment was not so qualified and, as we have pointed out, he had in fact engaged in plea bargaining with the Houston police and had represented Felder in the investigation of the Denver matter.

There is no merit to the state's argument that Insinger's appointment terminated upon Felder's waiver of extradition. Insinger represented Felder as to all criminal matters facing the accused while he was present in Idaho, and the attorney was treated accordingly by both the Houston and Idaho police. As in Brewer, the police officer set out to obtain information from Felder knowing that counsel had been appointed to represent him and without making any effort to determine whether counsel had forbidden such interrogation or whether counsel wished to be present. Because Clampitte knew that Felder had an attorney and had conferred with the attorney, he should have inquired whether the attorney had forbidden interviews.

In Brewer, a murder suspect's attorney instructed the police not to question his client during a car ride from Davenport to Des Moines, Iowa. The police agreed. During the trip the police officers elicited incriminating statements from Williams by suggesting to him that the victim's body should be located and buried. While the officers had given the accused Miranda warnings before beginning the trip, they made no further effort to obtain a waiver of his right to the presence of counsel before eliciting incriminating responses. Quoting from its prior decision in Massiah v. United States,9 a case involving different circumstances, the Court held that the accused was denied the sixth amendment right to counsel when the prosecutor used at his trial "evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel."10

"That the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant," the Court said in Brewer.11 That the Brewer statements were elicited over a longer interval and in response to the suggestion that the victim was entitled to a Christian burial is, if not equally constitutionally irrelevant, insufficient to distinguish Clampitte's deliberate interrogation of Felder. Massiah and Brewer establish a "clear rule ... that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him."12 As the Court pointed out in a footnote to Brewer, the existence of an agreement by the police not to interrogate the accused in the absence of his counsel "provides [the state] with no argument for distinguishing away the protection afforded by Massiah."13

Brewer cannot be distinguished on the basis that in that case the accused had himself initially requested counsel and stated his desire to speak only in counsel's presence, while Felder's lawyer had forbidden interviews with his client. Insinger spoke for Felder as his counsel.14 As in Brewer, it was counsel who "had made clear to the police that no interrogation was to occur...."15 Indeed, the very purpose of assuring an accused the assistance of counsel is to give him representation by someone better prepared and more competent to speak for him to police and other authorities.

Felder's I.Q. is 88, he is characterized as of low average intelligence, and, despite his prior brushes with the law, he was hardly as well qualified as his lawyer to understand the dangers implicit in interrogation by skilled police officers. As Clampitte testified at the suppression hearing, he elicited Felder's confession by marshalling the evidence against him and persuading him that the police knew what had happened. This was the very danger that Insinger, who protected his client fully and faithfully, sought to avoid.

The state relies upon the fact that Clampitte, by giving Felder Miranda warnings before questioning him, gave Felder an opportunity to assert his right to counsel and that he failed to do so. This dulls, if it does not miss, the point. Counsel had already been appointed for Felder, and had asserted, on Felder's behalf, in clear, unequivocal terms, Felder's right not to be interrogated in counsel's absence. Felder had not acted in a manner inconsistent with his lawyer's instructions or advice. Clampitte should never have begun the questioning session without first obtaining an unequivocal waiver. The Supreme Court in Brewer made clear that the mere giving of Miranda warnings, after the accused through his lawyer has instructed the police not to interrogate him, does not sanction that interrogation.16

III.

The state argues that Felder had the right to disregard his lawyer's advice, to waive his sixth amendment rights, and to speak to the police and that he did in fact waive his right to counsel. The right to the assistance of counsel may of course be waived. Whether it has been waived, however, is a factual inquiry. To establish a waiver of the previously-asserted sixth amendment right to the assistance of counsel, the Court held in Brewer, it is "incumbent upon the State to prove an intentional relinquishment or abandonment of a known right or privilege."17 Courts must "indulge in every reasonable presumption against waiver."18 We are to assess the "totality of the circumstances" in determining whether the purported waiver was voluntary and intelligent.19

Felder's written confession contained the statement, "I fully understand all these rights and desiring to waive all of them, I hereby make the following voluntary statement." Felder signed the written confession only after he had made the oral confession and hence had fully incriminated himself. The oral confession was, as is customary, reduced to writing. Signing the written confession was an after-the-fact confirmation and not a voluntary relinquishment of constitutional rights.

Here, as in Brewer, the record falls far short of sustaining the state's burden of showing a waiver of sixth amendment rights. Felder did not initiate the interview with Clampitte, and it was conducted not only after Felder's lawyer had advised him not to talk to the police but despite the lawyer's categorical instruction to the police not to question his client. Clampitte did give Felder a Miranda warning twice but Felder did not initiate the conversation, did not disavow his lawyer, and did not express any desire to talk either with police officers generally or with Clampitte personally in the absence of his attorney.20

He gave no other affirmative indication of a desire to relinquish his previously-asserted right to the presence of counsel. As the Supreme Court established in Brewer, a waiver of the sixth amendment right to counsel requires more than a recital of Miranda rights; the state must prove not only that a defendant understood his right to counsel but that he relinquished it.21 As we stated in United States v. Massey,22 "a valid waiver will not be presumed simply from the fact that a confession was in fact eventually obtained ... or that a waiver was eventually signed."

Brewer requires the conclusion that the confession was obtained in violation of Felder's sixth amendment rights. As in Brewer, Felder's counsel instructed law enforcement authorities not to interrogate his client in his absence. The police initiated an interrogation of Felder in violation of counsel's instructions. Although Felder may have understood his sixth amendment right to the assistance of counsel during this interrogation, he did not waive the right to have counsel present. Because these facts are indistinguishable from those in Brewer, we must conclude that Felder did not voluntarily relinquish his sixth amendment right to the assistance of counsel and therefore the confession must be suppressed.

Because we decide this case under the sixth amendment, we express no opinion on Felder's rights under the fifth amendment guarantee of due process.23

IV.

At oral argument, for the first time, the State contended that the use of Felder's confession was at worst harmless error because there was also evidence that he had orally admitted committing the crime to a friend in Denver, Edith Cobb, who testified for the State at the trial. Ms. Cobb testified that, before Felder was arrested in Idaho, he had told her that he had entered the apartment of a man he knew who had $1100 to $1300 in cash. He had carried a .38 revolver in case anyone tried to stop him. He had tried to get the money and, when the man recognized him, he had picked up a pair of scissors and stabbed the man to death, giving further details of the homicide. Ms. Cobb had given this account to the Denver police department and this had led to the filing of the charge against Felder and the issuance of the warrant for his arrest.

The thesis that two confessions do no more harm than one is ingenious, but one we have never adopted.24 Ms. Cobb's oral recall of Felder's statement was far less impressive than the detailed account spelled out in his written confession, which is deliberate, lengthy, and precise. Chapman v. California25 and a host of other cases26 teach that, for constitutional error to be ignored, it must be harmless beyond a reasonable doubt. A mere comparison of Ms. Cobb's testimony with the written statement introduced at trial demonstrates the weight that a jury might put on the later written and signed statement. Harm is demonstrable. The state cannot show that admission of Felder's confession to the police officer was harmless beyond a reasonable doubt.

V.

According to Texas jurisprudence, a criminal defendant who testifies on his own behalf at the punishment phase of trial and admits guilt waives appellate review of evidentiary rulings made during the guilt phase of the trial.27 After Felder was found guilty, his counsel moved at the start of the punishment phase of the trial for an order preventing the prosecutor from asking Felder--in the event Felder elected to testify on punishment--whether he had committed the crime. The trial court refused to give this order and Felder elected not to testify at the punishment phase. The state concedes that it would have been improper to ask Felder at the punishment phase whether he was "guilty" or "not guilty." But to ask Felder whether he had "committed the crime" would have been an equivalent injury.

We do not consider whether, in the event of Felder's retrial, this "waiver rule" would impermissibly chill Felder's constitutional right to take the stand in his own behalf. The issue may never recur. The state may not elect to try Felder, Felder and the state may make some sort of plea bargain, or a new trial may be conducted and Felder may be acquitted. If he is convicted, the questions he may be asked at the punishment phase of a new trial may be different and may be directed only to actions he took, not to the ultimate issue of guilt or innocence. Accordingly, our expression of an opinion at this stage would be dicta on an important constitutional issue. Such issues should be decided only on a specific record and only when essential to decision.28

For these reasons, the judgment is REVERSED.

The Clerk is directed to remand the case to the district court with directions to issue a writ of habeas corpus ordering Felder released from state custody unless within ninety days from the date of our mandate the state shall commence a new trial.

*****

1 See, e.g., Texas Code of Crim.Proc.Ann. arts. 15.03, 15.04 (1977)

2 Felder v. State, 564 S.W.2d 776 (Tex.Crim.App.1978) (en banc)

3 Felder v. Texas, 440 U.S. 950 , 99 S.Ct. 1433, 59 L.Ed.2d 640 (1979)

4 Felder v. Estelle, 693 F.2d 549 (5th Cir.1982)

5 Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)

6 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424, 436 (1977)

7 Moore v. Illinois, 434 U.S. 220, 227, 98 S.Ct. 458, 464, 54 L.Ed.2d 424, 433 (1977); Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411, 417 (1972)

8 Barnhill v. State, 657 S.W.2d 131 (Tex.Crim.App.1983); Bumgarner v. State, slip op. (Tex.Ct.App.1984). See also Brewer v. Williams, 430 U.S. 387, 398-99, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424, 436 (1977)

9 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)

10 Brewer v. Williams, supra n. 6, 430 U.S. at 400, 97 S.Ct. at 1240, 51 L.Ed.2d at 437

11 Id

12 Id., 430 U.S. at 401, 97 S.Ct. at 1240, 51 L.Ed.2d at 438

13 Id., 430 U.S. at 401 n. 8, 97 S.Ct. at 1240 n. 8, 51 L.Ed.2d at 438 n. 8

14 See, e.g., Brewer, supra n. 6, 430 U.S. at 405, 97 S.Ct. at 1242, 51 L.Ed.2d at 440

15 Id

16 Brewer, supra n. 6, 430 U.S. at 404, 97 S.Ct. at 1242, 51 L.Ed.2d at 439

17 Brewer v. Williams, supra n. 6, 430 U.S. at 404, 97 S.Ct. at 1242, 51 L.Ed.2d at 439 (citations omitted)

18 Id. (citations omitted)

19 Wyrick v. Fields, 459 U.S. 42, 46, 103 S.Ct. 394, 396, 74 L.Ed.2d 214, 218 (1982); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)

20 Cf. Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982)

21 Brewer v. Williams, supra n. 6, 430 U.S. at 404, 97 S.Ct. at 1242, 51 L.Ed.2d at 439; see Silva v. Estelle, 672 F.2d 457, 458 (5th Cir.1982); Edwards v. Arizona, 451 U.S. 477, 485 n. 8, 101 S.Ct. 1880, 1885 n. 8, 68 L.Ed.2d 378, 386 n. 8 (1981)

22 550 F.2d 300, 307-308 (5th Cir.1977)

23 See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), a 1981 decision not applicable here because it has been held not retroactive; Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984); United States v. Priest, 409 F.2d 491 (5th Cir.1969); Nash v. Estelle, 597 F.2d 513 (5th Cir.1979) (en banc); Blasingame v. Estelle, 604 F.2d 893, 895 (5th Cir.1979); United States v. Massey, 550 F.2d 300, 307 (5th Cir.1977); Silva v. Estelle, 672 F.2d 457 (5th Cir.1982), and Government of Canal Zone v. Gomez, 566 F.2d 1289, 1291 (5th Cir.1978). See also United States v. Hernandez, 574 F.2d 1362, 1370 n. 16 (5th Cir.1978) and authorities cited therein

24 See United States v. Webb, 755 F.2d 382 (5th Cir.1985), in which we reversed a conviction after holding that two of the three confessions introduced were obtained in violation of Edwards. See also Harryman v. Estelle, 616 F.2d 870, 876 (5th Cir.1980) (en banc), cert. denied, 449 U.S. 860 , 101 S.Ct. 161, 66 L.Ed.2d 76 (1980)

25 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)

26 Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harryman v. Estelle, 616 F.2d 870, 876 (5th Cir.1980), and authorities cited therein

27 Gordon v. State, 651 S.W.2d 793 (Tex.Crim.App.1983); Smyth v. State, 634 S.W.2d 721 (Tex.Crim.App.1982)

28 E.g., Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970)

 

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Sam Felder, Jr., Also Known as Sammie Felder, Petitioner-Appellant,
v.
Gary L. Johnson, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.

No. 98-20575

Federal Circuits, 5th Cir.

June 30, 1999

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, JONES and DENNIS, Circuit Judges.1

EDITH H. JONES, Circuit Judge:

Sam Felder, a death row prisoner in Texas, appeals the district court's denial of his petition for a writ of habeas corpus. He raises numerous issues, three of which are discussed in depth in this opinion. First, Felder challenges the constitutionality of the "Texas waiver rule," which--until it was abrogated last year--treated a criminal defendant's admission of guilt during the punishment phase of his trial as a guilty plea that waived all guilt-phase trial errors. This claim is Teague-barred. Second, Felder argues that the prosecution violated his due process rights by suppressing the arrest record of a government witness. Third, Felder argues his representation was constitutionally deficient. Because these claims and the others raised by Felder are meritless, the district court's denial of habeas corpus is affirmed.

I. Facts and Procedural Background

Felder's habeas petition arises from the third time he was convicted and sentenced to death for the 1975 murder of James C. Hanks. The first two convictions were reversed on appeal or collateral review.2 The third conviction occurred in 1989 and was affirmed by the Texas Court of Criminal Appeals in 1992.3

Testimony at Felder's third trial established that James Hanks, a 41-year-old quadriplegic, was fatally stabbed with scissors in the temples and neck--among the few areas of his body in which he could feel pain--in the early morning hours of March 14, 1975. Because of his quadriplegia, Hanks lived in a Houston apartment complex for the disabled where he could receive frequent care and services.

That morning, when an attendant came to reposition Hanks as he slept, she discovered that Hanks's door was open, though she had closed it on her previous stop two hours before. (Because Hanks's mother, who normally lived with him, was temporarily in the hospital, his apartment door was being left unlocked that week.)

Hanks was found in his bed, with his head contorted into an awkward position. His breathing was very faint, and he had wounds on the sides of his head.4 The mattress was bloody. Hanks's wallet, which he kept under his pillow when he slept, was missing. The pillow was on the floor. Also missing was a pair of stainless-steel surgical scissors that was usually kept on a table near Hanks's bed. Hanks, comatose, was taken to a hospital and placed on life support. When it was later determined that Hanks was brain dead, he was removed from the life support system.

Felder worked for the company that provided services to the disabled residents in Hanks's apartment complex. He was an attendant whose duties extended to about fifteen residents, including Hanks. On the day before Hanks was found stabbed, Felder worked until 2:00 or 3:00 P.M. He was scheduled to work the day Hanks was found, but he did not report to work that day or later, or ever make arrangements to receive his last paycheck. Felder was arrested one month later in Idaho Falls, Idaho, when he was unable to produce valid identification during a traffic stop and found to have a concealed .38 caliber pistol.

Edith Cobb testified that she had seen Felder in Denver for "a couple of weeks" in late March and early April--after Hanks's death and before Felder's arrest. Cobb had met Felder in August 1974 and helped him get a job in Denver before he returned to Houston in November 1974. When Felder re-appeared in Denver in March 1975, Cobb asked Felder if he would like her to get him another job. Cobb testified that Felder told her "he had killed a man in ... Houston, and that he couldn't get a job." Felder told Cobb that he had been working in some kind of hospital and had seen a paralyzed man with a lot of money.

After getting off of work in the afternoon, Felder returned at 2:00 or 3:00 A.M., armed with a .38 caliber handgun, to rob the man. When Felder tried to take the money, the man woke up, recognized him, and, calling him by name, asked Felder what he was doing. Felder then grabbed a pair of scissors next to the bed and "started stabbing him in his head and throat and back and forth and back and forth and back and forth and then he took the pillow and was--kind of smothered--the man was crying and hollering, please don't hurt me, and ... he just kept stabbing him back and forth...." When it looked like the man was still breathing, Felder stabbed him more times.

Finally, when it looked like the man was dead, Felder took the money, over $300, and drove off in his car, throwing the scissors out the window on his way home. That day, his brother took him to the airport, and Felder flew to Denver, having packed the pistol in his suitcase. Cobb testified that Felder was "kind of laughing" when he recounted the killing. When she asked Felder why he had to kill the man, Felder said, "a dead man tells no tales."

Cobb saw Felder frequently over the next several days. He told her that he called his sister in Texas every day to ask whether the police were looking for him. Eventually, Felder heard from his mother that he should not come back to Texas because he was wanted by the police. Cobb last saw Felder on April 9, 1975, five days before he was arrested in Idaho.

After the jury found Felder guilty of capital murder, Cobb testified in the punishment phase of his trial. She described other crimes Felder told her he had committed in Denver. The jury answered both special issues in the affirmative, and Felder was sentenced to death.

After his conviction and sentence were affirmed on direct appeal, Felder filed a habeas petition in state court. The state district court's denial of relief was affirmed by the Court of Criminal Appeals in 1995. Felder's federal habeas petition was denied by the district court in 1998. The district court granted a certificate of probable cause. Felder now appeals the denial of habeas relief.

II. Standard of Review

This case is governed by pre-AEDPA habeas standards because Felder's petition was filed before April 24, 1996. See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir.1997). This means that state-court fact findings are binding on federal courts when they are "fairly supported by the record." 28 U.S.C. 2254(d)(8) (1994) (amended 1996). Legal questions, however, as well as mixed questions of law and fact, are reviewed de novo. See Johnson v. Puckett, 176 F.3d 809, ---- (5th Cir.1999).

The district court in this case mistakenly recited AEDPA standards. Yet, because the record is complete, and virtually every issue must be reviewed de novo, we need not remand the case for further fact findings. Cf. Magouirk v. Phillips, 144 F.3d 348, 362-63 (5th Cir.1998) (remanding on fact-based claims where state trial transcript was missing from federal record and magistrate judge incorrectly applied heightened, AEDPA-level deference).

III. The Texas Waiver Rule

At the time of Felder's trial, Texas law treated a defendant's admission of guilt during testimony in the punishment phase of a bifurcated trial as waiving for appeal any guilt-phase trial errors. See McGlothlin v. State, 896 S.W.2d 183, 186 (Tex.Crim.App.1995); DeGarmo v. State, 691 S.W.2d 657, 660-61 (Tex.Crim.App.1985). This procedure, known as the DeGarmo doctrine or "Texas waiver rule," was abrogated by the Texas Court of Criminal Appeals in December 1998. See Leday v. State, 983 S.W.2d 713, 725-26 (Tex.Crim.App.1998).

Felder argues that the Texas waiver rule--when combined with the district court's refusal to grant a motion in limine for his proposed punishment-phase testimony--unconstitutionally chilled his Fifth Amendment rights and compromised his Eighth Amendment right to present all mitigation evidence. The waiver rule purportedly achieved this result through the excessive threat it posed to Felder if he decided to testify and risk opening the door to cross-examination questions about his guilt. While testifying in a bill of exceptions, Felder agreed that he wanted "to give testimony regarding [his] feelings about [his] remorse in regards to this offense," that he wanted to describe how he had "changed" since he had been to prison, and, in his own words, said, "I wanted to explain to the Court how I felt about things." He also said that he would deny Edith Cobb's allegations that he had committed other crimes in Denver.

The district court rejected Felder's claim. This court has never ruled on the constitutionality of the Texas waiver rule under the Fifth or Eighth Amendment.5

No matter how we characterize Felder's constitutional claims, however, they are not cognizable in this habeas corpus proceeding because of the anti-retroactivity rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Teague resolved that federal habeas relief may not be granted based on "new" rules of constitutional law. Under Teague a new rule is one in which the result was not "dictated by precedent existing at the time the defendant's conviction became final." Id. at 301, 109 S.Ct. at 1070 (plurality opinion) (emphasis in original); see also Lambrix v. Singletary, 520 U.S. 518, 527-28, 117 S.Ct. 1517, 1525, 137 L.Ed.2d 771 (1997).

Felder's conviction and sentence became final for Teague purposes on October 4, 1993, when the Supreme Court denied his petition for certiorari after his conviction was affirmed on direct review in state court. See Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). Thus, this court must "[s]urve[y] the legal landscape as it then existed and determine whether a state court considering [Felder's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." Id. (internal quotations and citations omitted). If not, then Teague 's bar applies. Teague 's only exceptions are for rules that would place certain primary conduct beyond the government's power to proscribe or bedrock rules of criminal procedure that are necessary to insure a fundamentally fair trial. See O'Dell v. Netherland, 521 U.S. 151, 157, 117 S.Ct. 1969, 1973, 138 L.Ed.2d 351 (1997).

In this case, Teague clearly bars the relief Felder seeks, and neither of its exceptions is applicable. The Texas waiver rule, although unusual and now disavowed by the Texas courts, was not condemned by any Supreme Court authority and, indeed, was at least inferable from McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), vacated on other grounds by Crampton v. Ohio, 408 U.S. 941 , 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972).

In McGautha, the Supreme Court interpreted its prior opinion in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In Simmons, the Court had held that testimony given by the defendant during a suppression hearing could not be used against him on the issue of guilt during his trial. In McGautha, the Supreme Court explained that Simmons involved an unusual situation of pitting "another provision of the Bill of Rights" against the Fifth Amendment. See McGautha, 402 U.S. at 212, 91 S.Ct. at 1469 (quoting Simmons, 390 U.S. at 394, 88 S.Ct. at 976).

The McGautha Court concluded that "the policies of the privilege against compelled self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt." Id. at 217, 91 S.Ct. at 1472. It also rejected the related argument about a defendant who is deterred into silence, concluding: "We do not think that Ohio was required to provide an opportunity for [the defendant] to speak to the jury free from any adverse consequences on the issue of guilt." Id. at 220, 91 S.Ct. at 1474. Although the Supreme Court since McGautha has precluded a unitary trial procedure in capital cases, bifurcation is normally understood as insulating the guilt-phase determination from broader punishment-phase testimony. See Gregg v. Georgia, 428 U.S. 153, 190-95, 96 S. Ct. 2909, 2933-36, 49 L.Ed.2d 859 (1976) (plurality opinion). That is not the problem of which Felder complains.6

Relief is thus unavailable to Felder in federal habeas corpus because his entitlement to it would depend on establishing a "new" rule of constitutional criminal procedure.

IV. Brady Claim for Impeachment Evidence

Felder argues that the prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by not disclosing that its chief witness, Edith Cobb, had been arrested for forgery in 1982. On appeal, this Brady claim is directed toward only the sentence of death, even though Cobb testified during both the guilt and punishment phases.

The state habeas court concluded that evidence of an arrest without conviction was not Brady material because it would not have been admissible to impeach Cobb. In addition, it found that any suppression did not undermine confidence in the trial and cited cases to show that the "mere possibility" that an item "might have helped defendant" is insufficient to make it Brady material. The federal district court found that the evidence was inadmissible, and that, even if admitted, the evidence would not have changed the outcome of the trial.

This court reviews the district court's Brady determinations de novo. See East v. Johnson, 123 F.3d 235, 237 (5th Cir.1997).

Brady 's requirement that the prosecution disclose exculpatory evidence does extend to information that could be used to impeach government witnesses. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). The suppressed information, however, must still be "evidence" that is "material either to guilt or to punishment." Brady, 373 U.S. at 87, 83 S.Ct. at 1197. Evidence is material "only where there exists a 'reasonable probability' that had the evidence been disclosed the result at trial would have been different." Wood v. Bartholomew, 516 U.S. 1, 5, 116 S.Ct. 7, 10, 133 L.Ed.2d 1 (1995).

The Fifth Circuit has not clearly specified how to deal with Brady claims about inadmissible evidence--a matter of some confusion in federal courts7--except to reaffirm that "inadmissible evidence may be material under Brady." Spence v. Johnson, 80 F.3d 989, 1005 n. 14 (5th Cir.1996) (citing Sellers v. Estelle, 651 F.2d 1074, 1077 n. 6 (5th Cir. Unit A July 1981)). Thus, we ask only the general question whether the disclosure of the evidence would have created a reasonable probability that the result of the proceeding would have been different. See East, 123 F.3d at 237. In this case, the question is whether the disclosure of the inadmissible evidence of Cobb's arrest would have created a reasonable probability that Felder would not have been sentenced to death.

Felder argues that if the evidence of Cobb's arrest had been disclosed, attempts to follow up on the arrest would have led his attorneys to admissible impeachment evidence about Cobb's reputation for dishonesty in Denver.8 In the habeas proceeding, Felder produced an affidavit from a Denver police officer saying in part: "During 1988 and 1989 (and perhaps before), Edith Cobb was known by the members of this community to be a dishonest person."

Two aspects of Cobb's testimony were relevant to the jury's punishment-phase decisions. First, Cobb testified during the punishment phase that Felder had told her of other crimes he had committed after the murder. She recounted his description of his armed robbery of a barbershop in Denver. She also recounted his explanation that he was able to afford staying at a hotel in downtown Denver by burglarizing "the projects" to steal stereos and televisions, and that he carried a gun with him during these burglaries in case any of his victims woke up.

These other crimes were relevant to the jury's punishment-phase determination that there was a probability Felder would "commit criminal acts of violence that would constitute a continuing threat to society." Second, some of Cobb's guilt-phase testimony was relevant to the jury's punishment-phase determination that Felder's conduct in causing Hanks's death was "committed deliberately." Cobb had supplied chilling details of the killing itself as described to her by Felder and also of his laughing as he described the killing.

This court finds that the shadow cast upon Cobb's testimony by potentially-discoverable evidence of her dishonesty does not "put the whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995); see also Strickler v. Greene, --- U.S. ----, 119 S.Ct. 1936, --- L.Ed.2d ---- (1999) (not material if there is only "a reasonable possibility that either a total, or just a substantial, discount of [a witness's] testimony might have produced a different result" (emphasis in original)).

Other factors demonstrate that the introduction of evidence casting doubt on Cobb's honesty would not have created a reasonable probability of a different sentence for Felder. First, there was physical evidence to corroborate Cobb's second-hand description of the murder's deliberateness: chiefly the number of wounds, their severity, and their concentration in Hanks's neck and head. Second, Felder had a prior criminal record of burglaries, and he had a gun when he was arrested, both demonstrating his threat to society. Third, Cobb's testimony about the additional crimes did not go unquestioned. In fact, Felder's defense counsel highlighted the lack of any corroboration for Cobb's descriptions of the additional crimes. He noted that the prosecution brought a police officer from Idaho to testify about the pistol Felder had when he was arrested, but brought nobody from Denver besides Cobb to testify about these other crimes. Defense counsel also openly wondered at how Cobb had "miraculously remembered something else" and stressed that Cobb had not testified about these other crimes at either of Felder's two previous trials. Cf. United States v. Amiel, 95 F.3d 135, 145 (2d Cir.1996) ("Suppressed evidence is not material when it merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable." (internal quotation omitted)).

This case is also distinguishable from East, on which Felder relies and in which this court found a Brady violation based on the suppression of a prosecution witness's criminal history. The witness in East testified at the punishment phase of East's murder trial that East had raped her at gunpoint, threatened to murder her, and told her he had murdered several other women. See 123 F.3d at 237-38. Revelation of that witness's criminal history, however, would have led defense counsel to a report describing her mental illness: she "experienced bizarre sexual hallucinations and believed that unidentified individuals were attempting to kill her." Id. at 238. Thus, in East, the potential impeachment evidence related directly to the subject-matter of the witness's testimony, and her testimony about future dangerousness was more extreme than Cobb's because it accused East of "several" other murders.

The prosecution did not violate Brady because disclosure of Cobb's forgery arrest would not have created a reasonable probability that Felder would not have been sentenced to death.

V. Ineffective Assistance of Counsel

Felder next asserts that his trial attorneys provided unconstitutionally deficient representation because they (1) failed to investigate and impeach the key prosecution witness, Edith Cobb; and (2) failed to investigate and present mitigating testimony from Felder's family. In addition to these two grounds, Felder argues that his representation was rendered deficient by the prosecution's surprise tactic of introducing unadjudicated offenses during the punishment phase.

The test for defective representation is two-fold: whether counsel's representation was so objectively unreasonable and incompetent as to be constitutionally deficient; and whether counsel's errors actually prejudiced the defendant by depriving him of a fundamentally fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The state court's findings of fact are binding so long as they are "fairly supported by the record," 28 U.S.C. 2254(d)(8) (1994) (amended 1996), but the ultimate question of effective assistance is itself a mixed question of law and fact, reviewed de novo. See Bryant v. Scott, 28 F.3d 1411, 1414 (5th Cir.1994). Relief may be denied if the defendant fails to establish either prong of the Strickland test. See id. at 1415.

Reviewing the claims of deficient representation, the federal district court found that the state court findings were supported by the record, and we agree.

On counsel's failure to investigate Cobb and impeach her testimony with evidence of her lack of credibility, it is sufficient to note that the standard for prejudice under Strickland is "identical to" the standard for materiality under Brady. Johnson v. Scott, 68 F.3d 106, 109-10 (5th Cir.1995). Because the impeachment evidence was not material under Brady--as discussed above, in part IV--failure to present it was not prejudicial under Strickland.

As for the mitigating evidence available from family members,9 there is no reasonable probability that trial counsel's deficient performance--if any10--yielded a different result or an unfair trial. The addition of testimony from family members to buttress the mitigating character evidence already introduced would not have created a reasonable probability of a different result in the punishment phase. This claim does not meet Strickland 's prejudice requirement.

Felder's final claim of ineffective assistance of counsel is odd because it focuses on the prosecution's conduct. Felder argues that Cobb's testimony about unadjudicated offenses was such a surprise that it made effective cross-examination impossible and thus deprived him of effective assistance of counsel. To the extent that this is a substantive claim that the introduction of unadjudicated offenses was unfair, Felder is procedurally barred from asserting it by his failure to object at trial on these grounds.11 To the extent that Felder identifies ineffective counsel as "cause" for the failure to object, our discussion above makes clear that there was no Strickland prejudice from introduction of the unadjudicated offenses, meaning the procedural bar cannot be overcome.12

The district court did not err in finding that Felder had not met his burden of demonstrating ineffective assistance of counsel under both prongs of Strickland.

VI. Other Claims

Felder raises three contentions that border on the legally frivolous: that executing him after two decades of delay is unconstitutional; that the trial court failed to define reasonable doubt; and that Texas's method of lethal injection violates the Eighth Amendment.13 This court has previously rejected such claims in similar or identical circumstances. It was not error for the district court to deny relief on these claims.

Two of Felder's other claims were inadvertently not ruled on by the district court. Under the circumstances, where they are easily resolved on the record and Felder already complains of the time this case has taken, we can affirm the district court's denial of habeas corpus.

The first of these two claims is that there was insufficient evidence of Felder's future dangerousness in the punishment phase of trial. Given the facts recited above--including the brutality of the murder itself, Felder's prior burglary convictions, and his possession of a concealed weapon upon arrest--the contention that the evidence was insufficient must fail.

The second claim on which the district court did not rule is Felder's challenge to the prosecution's use of victim character evidence. The state court found that Felder was barred from raising the victim character evidence because his counsel never objected to that testimony. This is true with respect to only some of the testimony now invoked. In any event, the Supreme Court has held that the Eighth Amendment poses no per se bar to a state's decision to allow victim impact evidence in the sentencing phase of a capital case. See Payne v. Tennessee, 501 U.S. 808 , 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991).

The testimony about the victim here--that Hanks "never refused anyone anything," "was always in good spirits even though he was disabled," and was "a very good natured person" who "didn't have any enemies"--was no more inflammatory than what this court has allowed in other cases. See, e.g., Westley v. Johnson, 83 F.3d 714, 722 (5th Cir.1996) (testimony about victim's "community volunteer service and other good deeds"); Wiley v. Puckett, 969 F.2d 86, 105 (5th Cir.1992) (testimony that victim was "not a violent or mean person, that he was known in the community as 'Mr. Good Buddy,' and that he occasionally loaned small amounts of money"). Furthermore, the potential impact of the testimony must be considered in perspective with the facts of the crime itself. See United States v. Hall, 152 F.3d 381, 405 (5th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 1767, --- L.Ed.2d ---- (1999).

VII. Conclusion

Because none of Felder's claims justifies granting habeas corpus relief, the district court's judgment is AFFIRMED.

*****

1 Judge Dennis concurs in the judgment

2 See Felder v. McCotter, 765 F.2d 1245 (5th Cir.1985); Felder v. State, 758 S.W.2d 760 (Tex.Crim.App.1988)

3 See Felder v. State, 848 S.W.2d 85 (Tex.Crim.App.1992), cert. denied, 510 U.S. 829 , 114 S.Ct. 95, 126 L.Ed.2d 62 (1993)

4 There were ten wounds on Hanks's temples and neck. A medical examiner testified that the cause of death was a stab to the left temple that had penetrated into Hanks's brain by 2 1/2 to 3 inches. A hospital summary noted that "brain was extruding" through this wound

5 In a habeas appeal related to Felder's first conviction, this court expressly refused to decide the question. See Felder v. McCotter, 765 F.2d 1245, 1251 (5th Cir.1985)

6 We also note the Supreme Court's recent decision in Mitchell v. United States, --- U.S. ----, 119 S.Ct. 1307, --- L.Ed.2d ---- (1999). In Mitchell, the Court held that a guilty plea does not waive the Fifth Amendment privilege against adverse inferences from failure to testify during the sentencing phase. This does not establish anything approaching the right Felder proposes

7 In Wood v. Bartholomew, the Supreme Court did not declare squarely whether inadmissible information could be material evidence under Brady, even though the circuit courts had already developed various approaches to that question. The Court first noted that polygraph results, being inadmissible, were "not 'evidence' at all" and "could have had no direct effect on the outcome of trial." 516 U.S. at 6, 116 S.Ct. at 10. It proceeded, however, to discuss the merits of the Ninth Circuit's attempt to "get around this problem," and concluded that "mere speculation" about whether the information could have led defense counsel to "additional evidence that could have been utilized" did not meet "the standards we have established." Id

Reactions to Wood have been as varied as the pre-Wood jurisprudence. Some courts read Wood to mean inadmissible information cannot be material under Brady. See Hoke v. Netherland, 92 F.3d 1350, 1356 n. 3 (4th Cir.1996) (inadmissible statements are immaterial "as a matter of law"); United States v. Montalvo, 20 F.Supp.2d 270, 277 (D.P.R.1998). One circuit has concluded that Wood did not affect its practice of allowing inadmissible evidence to be material if it "would have led to admissible evidence." See Wright v. Hopper, 169 F.3d 695, 703 & n. 1 (11th Cir.1999). Another has followed Wood 's methodology, noting inadmissible evidence is "not ' "evidence" at all,' " and then asking whether a link to admissible evidence is based on more than "mere speculation." See Madsen v. Dormire, 137 F.3d 602, 604 (8th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 247, 142 L.Ed.2d 203 (1998). Still another has done the same as the Fifth Circuit and hewed to its pre-Wood practice without discussing Wood 's potential relevance. See Coleman v. Calderon, 150 F.3d 1105, 1116-17 (9th Cir.), rev'd on other grounds, --- U.S. ----, 119 S.Ct. 500, --- L.Ed.2d ---- (1998) (per curiam).

8 On appeal, Felder wisely does not repeat his argument that the evidence of the arrest would itself have been admissible to impeach Cobb

9 Felder summarizes 1994 affidavits from his family and friends as proof that, had they been called by the defense in 1989, they would have testified as follows:

Felder was a "respectful and well-mannered person"; he was "quiet" and "got along well with others"; ... he was "a real good listener," who was "always kind [and] peaceful"; "everyone liked Sam"; he was not known to be the "type to argue, get in fights or act violent towards anyone"; "he was never disrespectful or mean"; "Sam was not violent and did not have a temper."

None of the affidavits makes any explicit mention of any contact with Felder after 1975.

10 Rather than failing to present any mitigating evidence whatsoever, Felder's defense attorneys presented testimony from a psychiatrist and from three prison chaplains. Unlike the family-member affidavits presented by Felder, these witnesses spoke about Felder's character since he had been incarcerated. In his bill of particulars, Felder himself said he wanted to testify about how he had changed since 1975. The theme of defense counsel's closing argument in the punishment phase was captured in this passage:

Folks, Sammie has changed. All the evidence points to it.

Folks, some of you may not care. Some of you may say, I don't care if he has changed, that was such a horrible crime, I'm killing him. It's up to you. All I have to ask you is if that's the way you feel about it, then please just disregard all the chaplains, disregard the psychiatric testimony, throw it out the window.

It is not obvious that the changed-man theme was an objectively unreasonable trial strategy. Nor is it obvious that it would have been a better strategy to rely on family members and tell the jury that had just convicted Felder for a heinous murder something like "Sammie was never really that bad." Furthermore, it could have been equally suspicious to combine the changed-man strategy with family testimony: "Sammie was never that bad, but he's much better now."

11 The trial transcript does not support Felder's claim that this ground of objection was apparent from context. Felder's counsel objected to Cobb's testimony about the burglaries on the grounds that it lacked detail and had no corroboration. The alleged armed robbery of the barbershop was objected to as being "generally irrelevant to this hearing."

12 It is not clear whether Strickland prejudice would be sufficient to meet the prejudice required to overcome a procedural bar in habeas. Cf. Strickler v. Greene, --- U.S. ---- ---- n. 2, 119 S.Ct. 1936, ---- n. 2, --- L.Ed.2d ---- (1999) (Souter, J., dissenting in part) (Court treats habeas prejudice as synonymous with Brady materiality); Williams v. French, 146 F.3d 203, 210 n. 10 (4th Cir.1998) (unclear whether habeas prejudice is same as Strickland prejudice), cert. denied, --- U.S. ----, 119 S.Ct. 1061, 143 L.Ed.2d 66 (1999); United States v. Dale, 140 F.3d 1054, 1056 n. 3 (D.C.Cir.1998) ("habeas prejudice may require a greater showing" than Strickland prejudice), cert. denied, --- U.S. ----, 119 S.Ct. 794, 142 L.Ed.2d 657 (1999); Zinzer v. Iowa, 60 F.3d 1296, 1299 n. 7 (8th Cir.1995) (habeas prejudice "must be a higher standard" than Strickland prejudice). But without Strickland prejudice at a minimum, there is not even cause to overcome the procedural bar. See Turner v. Johnson, 106 F.3d 1178, 1188 (5th Cir.1997); Ellis v. Lynaugh, 883 F.2d 363, 367 (5th Cir.1989)

13 The lethal injection claim is procedurally barred. Several circuits have applied habeas requirements to suits challenging methods of execution, even when they are denominated civil rights claims. See Williams v. Hopkins, 130 F.3d 333 (8th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 595, 139 L.Ed.2d 431 (1997); McQueen v. Patton (In re Sapp), 118 F.3d 460 (6th Cir.), cert. denied, 521 U.S. 1130 , 117 S.Ct. 2536, 138 L.Ed.2d 1035 (1997); Felker v. Turpin, 101 F.3d 95 (11th Cir.1996). But see Fierro v. Gomez, 77 F.3d 301 (9th Cir.), vacated and remanded in light of new statute, 519 U.S. 918 , 117 S.Ct. 285, 136 L.Ed.2d 204 (1996)

 

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Sammie Felder, photographed November 10, 1999, by Dan Winters for the New York Times.