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Tyrone Leroy FULLER

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Rape - Torture - Robbery
Number of victims: 1
Date of murder: January 20, 1988
Date of birth: August 1, 1963
Victim profile: Andrea Lea Luke (female, 26)
Method of murder: Stabbing with knife
Location: Grayson County, Texas, USA
Status: Executed by lethal injection in Texas on July 7, 1999
 
 
 
 
 
 

 

Date of Execution:
July 7, 1999
Offender:
Tyrone Leroy Fuller #934
Last Statement:

Yes, to my family, I love you. Please do not mourn my death or my life. Continue to live as I want you to live. I hold no bitterness toward no one. Just remember the light. Im gonna let this light shine. Let it shine. Let the light shine.



Texas Attorney General

Tuesday, July 6, 1999

Media Advisory

AUSTIN - Texas Attorney General John Cornyn offers the following information on Tyrone Leroy Fuller who is scheduled to be executed after 6 p.m., Wednesday, July 7th.

FACTS OF THE CRIME

At about 7:30 a.m. on the morning of January 20, 1988, Patricia Duke returned home to the apartment she shared with her sister in Paris, Texas, from her night-shift post as a nurse at a nearby hospital. Patricia approached the apartment from the rear where the carport was located. She noticed that her sister's car was gone, and assumed she had already left for work.

The telephone was ringing when Patricia entered the apartment; she went to answer it, then noticed that the front door was standing open. She walked toward the front door and saw that the floor and walls of their apartment were smeared with blood. Patricia ran out the front door and around the corner of the apartment following a pair of bloody footprints to where police, emergency medical technicians, and passersby were gathered around the body of her sister Andrea Lea Duke.

Duke's nightgown-clad body had been discovered shortly after 7 a.m. on the morning of January 20, 1988, on the front steps of the duplex next door to her apartment. She had been beaten, stabbed several times, sexually assaulted, and left for dead; then she had apparently managed to drag herself from her bedroom out the front door and across the lawn to the steps of her next-door neighbors, where she died.

Police investigating the scene retraced the trail of blood left by Duke back into the apartment and into Duke's bedroom where they discovered large amounts of blood on the bed, clothing strewn about, and the furniture in general disarray. They also discovered a bloody sock print on a floor tile in the hallway outside the bedroom. Patricia Duke informed investigators that several items were missing from the apartment, including videotapes, jewelry, some credit cards, and her sister's car.

A pathologist, who first observed Duke's body at the crime scene and later performed an autopsy, testified that Duke died as a result of multiple stab wounds to the chest and heart and subsequent loss of blood. The pathologist identified 44 wounds on Duke's body, which included several stab wounds, three of which penetrated the chest cavity and were potentially fatal; various lacerations and contusions; and several "paired wounds" and "brush burn type" abrasions, which could have been caused by being whipped with the plug of the electric cord that was found tied around Duke's right wrist.

The pathologist also detected a broad contusion with sub-scalp hemorrhaging on the back of Duke's head, which indicated a blow to the head with a broad, flat object. According to the pathologist, evidence indicated that Duke had lived for a significant period of time, possibly for hours, after she was wounded.

The pathologist also took note of a stab wound to Duke's throat which produced a great deal of bleeding and which could have made it impossible for Duke to call for help either during the attack or after she was abandoned by her assailants.

The pathologist also testified that he had detected two distinct types among the numerous stab wounds on Duke's body: one type that was sharp at one end and blunted or squared off at the other end, which would be consistent with a single-edged knife; and the other type that was rounded at both ends, which could have been produced by either an irregular, a single-edged, or a double-edged sharp instrument. However, the pathologist acknowledged that all of the stab wounds could have been inflicted by the same weapon. He testified further that a five-inch-long lock-blade pocket knife could have inflicted the injuries.

The state presented at trial several statements Fuller had made to law enforcement and his testimony before the Lamar County grand jury, in which Fuller admitted to various levels of involvement in the instant offense. He claimed that he had been planning the burglary of Duke's apartment for about two weeks and had asked co-defendants John McGrew and Kenneth Harmon to accompany him; that the three of them broke into the apartment on the night of January 19, 1988, unaware that anyone was home; that he discovered Duke in her bed and informed McGrew and Harmon, then went to another room to look for items to steal; that McGrew and Harmon went into Duke's bedroom; that he heard a "scuffling" from Duke's bedroom and thought McGrew and Harmon were tying her up and putting her in the closet; that McGrew and Harmon were in Duke's bedroom for 45 to 55 minutes while he searched for items to steal; that he and McGrew left without Harmon then met up with him again later that night; that he did not see any blood on McGrew or Harmon; and that they never discussed what happened to Duke. In all of these statements, Fuller denied any involvement in, and indeed claimed that he was not even aware of, the sexual assault and murder of Andrea Lea Duke.

Several eyewitnesses placed Fuller in Duke's car on the day of the murder. His fingerprints were found in and on Duke's car, which was located by police the day after the murder parked a block from Fuller's house. Fuller's handwriting and fingerprints were found on the receipts of the stolen credit cards, and several witnesses testified he had used the credit cards during the weeks following the crime.

The bloody sock prints found in Duke's apartment were found to be consistent with Fuller's footprints but not consistent with the footprints of his co-defendants, McGrew and Harmon. Standard blood typing and genetic marker testing of seminal stains found on Duke's bed excluded McGrew, Harmon, and Duke's boyfriend as the donor, but did not exclude Fuller. Finally, DNA testing of seminal stains and hairs found on Duke's body and in Duke's bed also excluded McGrew, Harmon, and Duke's boyfriend, but not Fuller.

PROCEDURAL HISTORY

On December 13, 1988, Fuller was indicted in the Sixth Judicial District Court of Lamar County, Texas, in Cause No. 11755, for the capital murder of Andrea Lea Duke while in the course of committing and attempting to commit the offenses of aggravated sexual assault, burglary, and robbery, which occurred on January 20, 1988.

After a change of venue to the 59th Judicial District Court of Grayson County, Texas, Fuller was tried before a jury upon a plea of not guilty, and on March 7, 1989, the jury found him guilty of the capital offense. On March 13, 1989, following a separate punishment hearing, the jury answered affirmatively the two special sentencing issues submitted pursuant to former Article 37.071(b) of the Texas Code of Criminal Procedure. In accordance with state law, the trial court assessed Fuller's punishment at death.

Fuller's conviction and sentence of death were automatically appealed to the Texas Court of Criminal Appeals, which affirmed on March 25, 1992. The United States Supreme Court denied a petition for writ of certiorari on June 28, 1993, and denied rehearing on August 9, 1993.

Fuller filed an application for state writ of habeas corpus on May 3, 1995. On November 30, 1995, the trial court issued findings of fact and conclusions of law recommending that relief be denied. On January 16, 1996, the Court of Criminal Appeals denied relief based on the trial court's findings and conclusions. On June 10, 1996, the United States Supreme Court denied a petition for writ of certiorari.

On April 22, 1996, Fuller filed an initial petition for federal writ of habeas corpus in the United States District Court for the Eastern District of Texas, Sherman Division. Fuller filed an amended petition on July 27, 1996, raising several claims which had not been presented to the state courts in either the direct appeal of his conviction and sentence or in his initial state application for writ of habeas corpus. On April 21, 1997, a United States Magistrate Judge conducted an evidentiary hearing limited to Fuller's claims which had been presented to the state courts. The following day, the magistrate judge issued a report and recommendation that Fuller's petition for writ of habeas corpus be denied.

On August 19, 1997, a United States District Court Judge issued a memorandum opinion and order adopting the magistrate's report and recommendation and issued final judgment denying Fuller's petition for writ of habeas corpus. The United States Court of Appeals for the Fifth Circuit affirmed the district court's denial of habeas corpus relief on October 27, 1998, and the United States Supreme Court denied a petition for writ of certiorari on May 24, 1999.

On July 5, 1999, the Court of Criminal Appeals dismissed a second application for state writ of habeas corpus filed by Fuller. Also on July 5, 1999, the Texas Board of Pardons and Paroles denied a clemency petition filed by Fuller.

PRIOR CRIMINAL HISTORY

At the punishment phase of trial, the State presented evidence that Fuller had two prior felony convictions before the instant offense. On March 16, 1981, Fuller was convicted of the offense of burglary of a building upon a plea of guilty in Cause No. 8645 in the 6th Judicial District Court of Lamar County, Texas. He received a ten-year probated sentence for this offense, which was subsequently revoked when he failed to report to his probation officer. Fuller then received a seven-year sentence to be served in the Texas Department of Criminal Justice, Institutional Division.

On August 18, 1983, Fuller was convicted of the offense of burglary of a building upon a plea of guilty in Cause No. 9413 in the 6th Judicial District of Lamar County, Texas. He received a twelve-year sentence to be served in the Texas Department of Criminal Justice, Institutional Division. 21 SR 91.

Cleon Drake, Fuller's adult probation officer in 1981, testified that at their first and only meeting Fuller indicated that his nickname was "Evil" because he was so bad. Despite Drake's efforts to schedule Fuller's reporting sessions around his work schedule, Fuller refused to cooperate and, in fact, never reported to Drake. Fuller's probation was revoked as a result. Drake testified that Fuller had an attitude that the world owed him something; and, according to Drake, Fuller never attempted to cooperate within the criminal justice system or try to turn his life around.

Jailer Juanita McFadden testified that while Fuller was incarcerated in the Lamar County jail awaiting trial for the instant offense, she discovered during a search of his single-man cell several items that she considered to be potential weapons -- metal parts from a television set, a bracket from a light fixture, and a comb -- which Fuller had hidden in his cell. McFadden searched Fuller's cell again a few days later when she heard banging noises and discovered that the television in Fuller's cell was turned up very loud. McFadden found Fuller attempting to dig through the wall of his cell into a stairway leading to an unsecured part of the courthouse. She also found a detailed outline of an escape plan and other notes in Fuller's cell, as well as more potential weapons. Fuller was then moved to another cell. During a third search of Fuller's cell, McFadden discovered more potential weapons and another note regarding escape plans.

Vicky Bates, a supervisor at a local food service corporation, testified that Fuller had been employed there from June of 1986 to July of 1987, when he was terminated due to his admitted involvement in a series of thefts.

Nan Rose, a counselor for the Texas Rehabilitation Commission, came into contact with Fuller in January of 1986 when he applied for services after being referred to the agency by his parole officer. Psychological testing conducted at that time indicated that Fuller had an average I.Q. and was fully capable of functioning at a high level; but Fuller wanted a less demanding job that did not require additional training. Fuller ultimately found a job as a dishwasher at a local food service corporation. He was also diagnosed at that time as an antisocial personality with the attendant characteristics of being manipulative and self-centered.

DRUGS AND/OR ALCOHOL

There was no evidence of drug or alcohol use in connection with the instant offense.

 
 

Tyrone Fuller, 35, 99-07-07, Texas

The 1st Texas death row inmate to have DNA evidence used to convict him of capital murder was executed Wednesday night for the rape-slaying of a northeast Texas woman more than 11 years ago.

Tyrone Fuller, 35, was pronounced dead at 6:20 p.m., 8 minutes after the flow of lethal drugs began.

Looking frightened, he had a brief statement. He expressed love to his family, who watched through a window a few feet away as he gasped and coughed a few times before dying.

"Please do not mourn my death or my life. I hold no bitterness toward no one," Fuller said. "Just remember the light. I'm going to let this light shine. Remember to let the light shine."

5 members of the victim's family also watched as he was put to death but he made no eye contact with them.

Fuller, whose nickname for himself was "Evil" and who was on parole at the time of the murder, was convicted of attacking and killing Andrea Lea Duke during a burglary at her Paris home Jan. 20, 1988.

Beaten with a blunt object, whipped with an electrical cord, stabbed numerous times and raped, the 26-year-old medical technologist crawled from her duplex before dying on the front steps of her neighbor's home, where her body was found the next morning.

A pathologist determined she likely lived for several hours after the attack but couldn't scream for help because one of the 44 stab wounds severed her vocal chords. She received 3 other potentially fatal stab wounds to the chest.

"It was one of the most horrible murder cases I tried in the 20 years I was the district attorney," Tom Wells, the former Lamar County prosecutor, said this week. "The senselessness of it, the torturing nature of the way they killed her. It was pretty bad."

Fuller and 2 accomplices drove off with her car, jewelry and credit cards. Fuller was arrested after using the credit cards in Dallas, about 100 miles to the southwest.

He had been paroled 26 months earlier after serving less than 2 1/2 years of a 12-year sentence for burglary. It was his 2nd prison term for burglary.

At his 1989 trial, prosecutors used the then-new technology of DNA testing on body fluids and hairs recovered from the victim to tie Fuller to her attack and murder. The tests also eliminated Fuller's 2 companions as participants in the woman's rape.

"When this first started, we thought Fuller was going to be a lesser player and we thought we'd make a deal with him," Wells said. "When the DNA results came back, all of a sudden he jumped from being somebody involved into the lead player."

A bloody footprint found in the victim's home also was linked to Fuller and prosecutors had evidence he used the victim's credit cards. His fingerprints were found in her car, which was discovered a block from his home in Paris.

One of Fuller's companions, John McGrew, received a life prison term in a plea bargain. Charges against a 3rd man were dropped because there was no evidence to tie him to the crime, authorities said.

Wells said the woman's attackers apparently targeted her after breaking into her car the previous week, stealing her purse and finding her address. Then they stalked her and waited until she was home alone.

A psychiatrist testifying at his trial described Fuller as so antisocial that on a scale of 10 he would rank a 12 or 13. Defense attorneys argued Fuller came from a dysfunctional family where his mother had stabbed and shot his father in separate incidents.

Last week, convicted killer Charles Daniel Tuttle received a lethal injection for fatally beating a Tyler-area woman with a claw hammer more than 4 years ago during a robbery at her home.

Another execution is set for July. Reginald Reeves, 25, faces injection July 21 for the 1993 rape and strangling of a 14-year-old girl whose body was found dumped in a vacant home in Clarksville in Red River County.

Fuller becomes the 16th condemned inmate to be put to death in Texas this year, and the 180th overall since the state resumed capital punishment on Dec. 7, 1982.

(sources: Associated Press and Rick Halperin)

  


 

Tyrone Fuller was sentenced to die for the Paris, Texas robbery, rape and murder of Andrea Lea Duke. 

On 1/20/88, 24 year old Fuller and two accomplices stabbed Andrea to death during a home invasion burglary.  Andrea was beaten, raped and stabbed multiple times.  When they left, she attempted to reach her neighbor's house to get help but died just outside the front door. 

A pathologist determined she likely lived for several hours after the attack but couldn't scream for help because among her 44 wounds was one that severed her vocal chords.  Three other potentially fatal stab wounds were inflicted to her chest.

Fuller and his accomplices drove off with her car, jewelry and credit cards. Fuller was arrested after using the credit cards in Dallas, about 100 miles to the southwest. He had been paroled 26 months earlier after serving less than 2 1/2 years of a 12-year sentence for burglary. It was his 2nd prison term for burglary. 

At his 1989 trial, prosecutors used the then-new technology of DNA testing on body fluids and hairs recovered from the victim to tie Fuller to her attack and murder.

The tests also eliminated Fuller's two companions as participating in the woman's rape. "When this first started, we thought Fuller was going to be a lesser player and we thought we'd make a deal with him," Wells said. "When the DNA results came back, all of a sudden he jumped from being somebody involved into the lead player."

A bloody footprint found in the victim's home also was linked to Fuller and prosecutors had evidence he used the victim's credit cards. His fingerprints were found in her car, which was discovered a block from his home in Paris.

One of Fuller's companions, John McGrew, received a life prison term in a plea bargain. Charges against a third man were dropped because there was no evidence to tie him to the crime, authorities said.

Wells said the woman apparently had been targeted after her attackers broke into her car the previous week, stole her purse and obtained her address. Then they stalked her and waited until she was alone at home. that on a scale of 10 he would rank 12 or 13.

Defense attorneys argued Fuller came from a dysfunctional family where his mother had stabbed and shot his father in separate incidents.  While awaiting trial for Andrea's murder, Fuller was caught gathering materials in preparation for an escape attempt.

 
 


 

158 F.3d 903

Tyrone FULLER, Plaintiff-Appellant,
v.
Gary JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.

No. 97-41256.

United States Court of Appeals,
Fifth Circuit.

Oct. 27, 1998.

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

Before DAVIS, JONES and DUHE, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Tyrone Fuller, a Texas death row inmate, appeals the district court's denial of his request for federal habeas relief. He raises several claims in this appeal. We conclude that he has procedurally defaulted on these claims. In the alternative, we conclude that his claims are without merit. We therefore affirm the dismissal of his petition for habeas relief.

I. Facts

Andrea Lea Duke's body was discovered on her neighbor's front steps on January 20, 1988. She had died as a result of multiple stab wounds to her chest and heart. Before she died, Duke was severely beaten, raped, and left for dead. She died as she struggled to reach her neighbor's house.

Duke was attacked during the burglary of her duplex by John McGrew, Kenneth Harmon and Petitioner, Tyrone Fuller. The police recovered a bloody sock print on the hallway tile floor that was consistent with Fuller's footprint, but not those of his codefendants. Blood typing and genetic marker testing of seminal stains found on Duke's bed excluded the possibility that Duke's boyfriend or either of the codefendants was the donor, but did not exclude Fuller. DNA testing of seminal stains and hairs recovered from Duke's body excluded the possibility that they came from the codefendants or Duke's boyfriend, but did not exclude Fuller.

Tyrone Fuller was indicted for the capital murder of Andrea Lea Duke while in the course of committing and attempting to commit the offenses of aggravated sexual assault, burglary, and robbery in violation of TEX. PENAL CODE ANN. 19.03(a)(2) (West Supp.1991). Fuller was convicted of capital murder in March of 1989. The jurors answered two special sentencing issues in the affirmative, and the trial court sentenced Fuller to death.

Fuller appealed his conviction and sentence to the Court of Criminal Appeals of Texas, which affirmed the conviction. Fuller v. State, 827 S.W.2d 919 (Tex.Crim.App.1992). Fuller's petition for a writ of certiorari was denied by the United States Supreme Court in June of 1993. Fuller v. Texas, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993). The Supreme Court denied a rehearing in August of 1993. Fuller v. Texas, 509 U.S. 940, 114 S.Ct. 13, 125 L.Ed.2d 765 (1993).

Fuller filed a state habeas petition, to which the trial court submitted findings of fact and conclusions of law recommending denial of the requested relief. The Court of Criminal Appeals adopted the trial court's recommendations and denied relief in January of 1996. Ex parte Fuller, No. 30,127-01. The Supreme Court denied writs in June of 1996. Fuller v. Texas, 517 U.S. 1248, 116 S.Ct. 2507, 135 L.Ed.2d 196 (1996).

Fuller filed his first federal habeas petition in April 1996 and then requested leave to file an amended petition. The request was granted, and Fuller's amended petition was timely filed in July of 1996. The district court appointed a magistrate judge to conduct a hearing and propose findings of fact and conclusions of law on Fuller's habeas claims. After conducting an evidentiary hearing, the magistrate judge entered proposed findings and conclusions rejecting habeas relief. The district court adopted the magistrate judge's findings and conclusions and dismissed the habeas petition in August of 1997. The district court granted a Certificate of Probable Cause. Fuller now appeals the district court's judgment.

II. Procedure

A. The AEDPA

Because Fuller filed his habeas petition prior to the passage of the 1996 Antiterrorism and Effective Death Penalty Act, the regime set forth in that act does not apply to this case. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997).

B. Procedural Default

Habeas relief will not be granted by a federal court "unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. 2254 (1994). The Supreme Court has held that any petition containing an unexhausted claim (a "mixed petition") must be dismissed without prejudice for failure to exhaust state remedies. Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 1199, 71 L.Ed.2d 379 (1982). Fuller's federal habeas petition included some claims that were exhausted in state court and some claims that were not. Fuller asked the district court to dismiss his petition without prejudice so that he could proceed in state court on his unexhausted claims. The district court denied Fuller's request because the unexhausted claims were procedurally barred in state court and therefore the exhaustion requirement was met.

Fuller argues that the district court erred in refusing his request to dismiss the unexhausted claims without prejudice. Fuller's argument is without merit. The Supreme Court has held that the exhaustion requirement only exists with respect to remedies available at the time the federal petition is filed. Therefore, the exhaustion requirement is satisfied if such claims are procedurally barred under state law. Gray v. Netherland, 518 U.S. 152, 161, 116 S.Ct. 2074, 2080, 135 L.Ed.2d 457 (1996). See also Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991); Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 1570 n. 28, 71 L.Ed.2d 783 (1982).

Fuller did not raise the claims he asserts before us in his state habeas petition. We conclude that he is now foreclosed from bringing these claims in a second habeas petition because of Texas's abuse of the writ doctrine.1 Ex parte Carr, 511 S.W.2d 523, 525-26 (Tex.Crim.App.1974); Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. at 2557 n. 1.

Fuller argues that Texas did not regularly apply the abuse of writ doctrine when he filed his state habeas petition in May of 1995, and thus it would not serve as a procedural bar and fulfill the exhaustion requirement. Although Fuller is correct that a procedural rule that acts as a bar must be "firmly established and regularly followed," Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 851, 112 L.Ed.2d 935 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 1835, 80 L.Ed.2d 346 (1984)), we have previously determined that the abuse of writ doctrine was strictly and regularly applied at the time Fuller filed his first habeas petition. Emery v. Johnson, 139 F.3d 191, 195, 201 (5th Cir.1997). See also Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.1995).

In Emery, this Court recognized that although the abuse of writ doctrine historically had not been strictly and regularly applied, the irregularity was cured in 1994 when the Texas Court of Criminal Appeals announced that the doctrine would thereafter be strictly applied. 139 F.3d at 195-96. This panel is bound by Emery 's precedent. Narvaiz v. Johnson, 134 F.3d 688, 694 (5th Cir.1998). We therefore reject petitioner's claim that the abuse of the writ doctrine was not strictly or regularly applied. Thus, Fuller would have been precluded from asserting his unexhausted claims in a successive habeas petition in Texas state court.

Because Fuller could not have sought relief on his claims in state court, the district court correctly concluded that it need not dismiss Fuller's petition without prejudice to permit him to exhaust these claims. Although Fuller could overcome this procedural default by demonstrating cause and prejudice for his failure to bring all claims in his initial state habeas petition, he made no such argument either to the district court or to this Court.

Petitioner also argues that the procedural bar cannot operate to preclude federal review of his claims because he may present these claims to the Texas Court of Criminal Appeals under that court's original habeas jurisdiction regardless of any writ abuse.

In September 1995, Texas adopted Article 11.071 5(a) of the Texas Code of Criminal Procedure, which precludes a state court from considering the merits of claims presented in a successive habeas application unless predicate facts for a statutory exception are established.

In Ex Parte Davis, the Texas Court of Criminal Appeals, sitting en banc, considered whether it had habeas jurisdiction separate and apart from that referred to in Article 11. 947 S.W.2d 216 (Tex.Crim.App.1996). A minority of the court answered this question in the affirmative. We conclude that this minority view of the Texas Court of Criminal Appeals that it may have the right to consider a successive habeas petition despite Article 11 does not demonstrate a change in the strict, regular application of the abuse of writ doctrine by Texas courts.

Because the claims Fuller brings in this petition are procedurally barred in state court, these claims are not cognizable in federal habeas proceedings. In the alternative, however, we address the merits of these claims.

III. Ineffective Assistance of Counsel

Fuller challenges the district court's denial of his claim that his attorney was ineffective. Even were Fuller's claim not procedurally defaulted, it is meritless.

To demonstrate that his counsel was constitutionally ineffective, Fuller must make two showings. First, he must show that his counsel's performance was deficient--that counsel was not reasonably competent and counsel's advice was not "within the range of competence demanded of attorneys in criminal cases." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Second, Fuller must show that his defense was prejudiced by his counsel's incompetence. Id.

A. Failure to Investigate Juror Boyce Lee Lindsay

Fuller first argues that his counsel was constitutionally ineffective because both trial and appellate counsel failed to raise the issue that one of his jurors had been legally accused of theft. Juror Boyce Lee Lindsay was charged with theft at the time he was selected to serve on Fuller's jury. The juror questionnaire asked whether any juror was ever "charged, arrested, indicted, convicted or received any type of probation or deferred adjudication for any criminal offense above the level of a traffic ticket." Juror Lindsay replied "No" to this question.

In addition, during voir dire, the court instructed the panel that if any panelist was under legal accusation for a felony or any theft offense, the panelist must approach the bench. Juror Lindsay heard this admonition, but remained silent. Juror Lindsay was later selected as the twelfth member of the jury. Fuller argues that had counsel conducted a thorough review of the jurors' criminal records following the trial, they would have discovered Lindsay's criminal charge and could have moved for and obtained a new trial.

We decline to hold that counsel is ineffective under such circumstances and none of the cases Fuller cites supports a contrary conclusion. Competent counsel need not engage in such searching investigations of jurors where no suspicion is raised about the truthfulness of the juror's responses to questions.

In addition, Fuller has not satisfied the prejudice prong of Strickland. Even were we to believe that Fuller has demonstrated that his counsel was constitutionally deficient, Fuller has not demonstrated how Juror Lindsay's participation affected the reliability or the fairness of his trial.

B. Grand Jury Testimony

Petitioner next asserts that his counsel was constitutionally ineffective for failing to advise him not to testify before the grand jury in April 1988. Fuller argues that he was reluctant to testify, but his counsel advised that if he testified, he might escape indictment for capital murder. Counsel further advised that he would have no problems answering the prosecutor's questions.

Fuller's counsel stated in her affidavit that she and Fuller discussed the pros and cons of testifying, and discussed the possibility that he might be indicted for murder and not capital murder. Counsel stated that she could not imagine that she told Fuller that he would have no problems answering the prosecutor's questions. Counsel further stated that Fuller was convinced of his ability to persuade the grand jury that he was not involved in this case. Ultimately, Fuller made the decision to testify. Counsel and the prosecutor stated in their affidavits that the information regarding Fuller at the time of the grand jury testimony indicated that he was the least culpable of the three potential perpetrators. Counsel stated that she was negotiating a plea bargain at that time. Indeed, it was only later, after forensic evidence was discovered, that the prosecutor concluded that Fuller was the primary participant.

The district court, after conducting an evidentiary hearing, found that "the state habeas court's findings are consistent and comport to the evidence adduced at the [federal] evidentiary hearing." The district court then relied on the state court findings that Fuller knowingly, voluntarily, and intelligently waived his right not to testify before the grand jury. The state court further found that Fuller insisted on testifying to the grand jury, and that at the time of the grand jury testimony, he was advising his attorneys that he was not involved in the murder or sexual assault. The trial court also found that counsel did not tell Petitioner that he would not be indicted for capital murder if he testified, and did not advise him that he would have no problems answering the prosecutor's questions.

We agree with the district court that Fuller made an informed choice to testify before the grand jury and that Fuller's counsel was not constitutionally ineffective for failing to advise Fuller not to testify in these circumstances. We conclude that the district court properly dismissed this claim as meritless.

IV. Sixth Amendment Right to Counsel

Fuller argues next that the state violated his Sixth Amendment right to counsel by refusing to allow his counsel to be present during the grand jury proceeding. In United States v. Mandujano, the Supreme Court held that a witness has no constitutional right to an attorney during grand jury proceedings when criminal proceedings have not been instituted against the witness and therefore the Sixth Amendment right to counsel has not attached. 425 U.S. 564, 581, 96 S.Ct. 1768, 1778, 48 L.Ed.2d 212 (1976). Because Fuller had not been indicted at the time of his grand jury testimony, his Sixth Amendment right to counsel had not attached and therefore could not have been violated.

V. Juror Lindsay's Presence and Fuller's Due Process of Law

Fuller argues finally that the presence of Boyce Lee Lindsay on his jury deprived him of his rights to due process and a fair trial. Fuller argues that because Texas law disqualified Lindsay from service on a jury, the failure to follow such law rendered his trial unconstitutional. This Court does not review violations of state law on habeas unless the violation renders the trial as a whole fundamentally unfair. Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982). Fuller's only showing of unfairness is that the state law was violated. Fuller has not shown that the failure to follow a state law regarding the composition of a jury renders the entire trial fundamentally unfair. Fuller has thus not asserted a claim cognizable in federal habeas corpus proceedings. Id. at 119, 102 S.Ct. at 1567.

Conclusion

In summary, we conclude that these Fuller's claims are not cognizable on federal habeas because Fuller procedurally defaulted on these claims in the state court. In the alternative, the claims are without merit. We therefore affirm the judgment of the district court dismissing Fuller's habeas petition.

AFFIRMED.

*****

1

Although an abuse of the writ rule was added to the Texas Rules of Criminal Procedure in 1995, TEX. CODE CRIM. P. ANN. art. 11.071 5(c), the doctrine that preceded the adoption of this rule constitutes adequate grounds to decide this appeal

 

 

 
 
 
 
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