Craig Neil Ogan | Murderpedia, the encyclopedia of murderers

Craig Neil OGAN Jr.

Classification: Murderer

Characteristics: DEA informant

Number of victims: 1

Date of murder:

December 9,

1989

Date of arrest: Same day

Date of birth: December 18,

1954

Victim profile:

James C. Boswell, 29 (Houston police officer)

Method of murder: Shooting

Location: Harris County, Texas, USA

Status: Executed by lethal injection in Texas on November 19,

2002

Summary:

Ogan worked as a DEA informant in the Houston area. Despite explicit instructions to possess no deadly weapons, Ogan stepped out of his motel after an argument over long distance calls, armed himself, and walked across the street to a police car that had pulled over a vehicle for a traffic stop.

Ogan went to the side of the police car and knocked on the window. Officer James C. Boswell rolled down his window and asked what Ogan wanted. Ogan responded, "DEA dropped me off out here, and I'm cold."

Officer Boswell told Ogan to back away from the car until the officers finished the traffic stop. When Ogan persisted, demanding that Boswell give him immediate assistance, Officer Boswell took his gun from the holster and, holding it behind his right leg, reached into the police car to unlock the back door.

Ogan then, without warning or provocation, shot Officer Boswell in the head. After seeing his partner fall against the back door of the police car, Officer Gainer chased and caught Ogan, wounding him in the process.

Final Meal:

None.

Final Words:

"In killing me, the people responsible have blood on their hands, because I am not guilty. I acted in self-defense and reflex in the face of a police officer who was out of control." During his lengthy final statement, Ogan also complained of "police and prosecutorial perjury," which the courts ignored. The lethal injection was given while Ogan was still speaking. He was talking about Boswell's dealings with "enemy agents," when he paused, then lost consciousness.

ClarkProsecutor.org

Texas Attorney General

Media Advisory

Friday, November 15, 2002

Craig Neil Ogan Scheduled to be Executed.

AUSTIN - Texas Attorney General John Cornyn offers the following information on Craig Neil Ogan, who is scheduled to be executed after 6 p.m. on Tuesday, Nov. 19, 2002.

On June 29, 1990, Craig Neil Ogan was sentenced to die for the capital murder of police officer James C. Boswell, which occurred in Houston, Texas, on Dec. 8, 1989.

A summary of the evidence presented at trial follows:

FACTS OF THE CRIME

In late 1989, Craig Neil Ogan moved to Houston, Texas, from St. Louis, Missouri, where he voluntarily acted as a confidential informant for the Drug Enforcement Administration (DEA). A DEA agent acted as Ogan's supervisor in Houston.

The DEA agent told Ogan that he could not carry a weapon under any circumstances, per DEA policy. He also told Ogan to "just let his face be known" around Houston and instructed him not to be involved in any drug deals.

Despite these explicit instructions, Ogan insisted on arming himself and continued to seek involvement in drug transactions. On Dec. 8, 1989, Ogan called the DEA agent from a Houston restaurant. Ogan told him that a deal had fallen through and resulted in an armed confrontation. Ogan told the agent that he feared for his life and asked him to come to the restaurant and escort Ogan safely off the premises.

The DEA agent arranged for Houston police officers Darryl O'Leary and Steven Hanner to escort Ogan out of the restaurant. Ogan asked the officers to take him to his apartment so that he could remove papers and tapes related to a DEA investigation. At Ogan's apartment, the officers observed Ogan pack his belongings, including what appeared to be a .38-caliber pistol, a sawed-off shotgun, and at least two hunting knives. Officers O'Leary and Hanner then followed Ogan as he drove to a motel.

Ogan checked into his motel room and attempted to make several long-distance telephone calls, but the service was disconnected because Ogan had not left a deposit for long-distance calls. When Ogan went to the office to pay for his calls and to leave a deposit, he also complained that the heater in his room was not functioning. As he complained, he became louder and more upset, but eventually left the office area.

A short time later, Ogan returned to the motel office and renewed his complaints. He told the desk attendant that he did not want to pay for his long-distance calls and wanted his money back. Ogan became more angry. The attendant threatened to call security at which time Ogan began kicking at the office door. The desk attendant then called 9-1-1 for assistance. Ogan left the motel, and, seeing a police car across the street, walked to the passenger side of the car and knocked on the window.

Houston police officers Morgan Gainer and James Boswell had pulled into the parking lot to stop a car for a traffic infraction, and were unaware of the dispute between Ogan and the motel clerk. In response to Ogan's knock, Officer Boswell rolled down his window and asked what Ogan wanted. Ogan responded, "DEA dropped me off out here, and I'm cold." Officer Boswell told Ogan to back away from the car until the officers finished the traffic stop.

Ogan knocked on the window a second time. Officer Boswell opened the door and again asked Ogan to step back. Ogan told Officer Boswell that he was an informant for the DEA and that he was cold. Officer Boswell again told Ogan that he would have to wait. Ogan instead repeated his statement a third time. Officer Boswell told Ogan, "You need to get out of here if you are not willing to step out of the way and wait. You either need to leave, or you are going to jail."

Officer Boswell then got out of the police car. Ogan demanded that Boswell give him immediate assistance. Officer Boswell took his gun from the holster and, holding it behind his right leg, reached into the police car to unlock the back door.

PROCEDURAL HISTORY

On June 25, 1990, Ogan was convicted in Harris County, Texas, for the intentional murder of Houston police officer James C. Boswell. After a separate punishment hearing, Ogan was sentenced to death on June 29, 1990. The conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals.

The Supreme Court denied Ogan's petition for writ of certiorari on March 28, 1994. The Court of Criminal Appeals denied Ogan's application for state writ of habeas corpus on April 28, 1999.

On Sept. 29, 2000, the district court denied Ogan's federal writ of habeas corpus, as well as his request for an evidentiary hearing and a certificate of appealability (COA). Ogan filed an application for COA to the Fifth Circuit Court of Appeals on Jan. 29, 2001, and the Director filed a response in opposition on Feb. 28, 2001.

On Dec. 12, 2001, pursuant to the issuance of the Supreme Court's opinion in Penry v. Johnson, 532 U.S. 782 (2001), the Fifth Circuit requested that both parties file supplemental briefing regarding the applicability of Penry II to Ogan's case. After hearing oral argument, that court denied Ogan's request for COA on June 28, 2002. Ogan filed a petition for writ of certiorari to the Supreme Court on Oct. 30, 2002.

PRIOR CRIMINAL HISTORY

While Ogan had numerous unadjudicated assaults where charges were dismissed, he has no prior criminal record.

ProDeathPenalty.com

A jury deliberated for five hours before they found Craig Neil Ogan Jr. guilty of killing a Houston police officer who had rejected his demand for immediate attention at a street scene.

The officer's parents hugged and clasped hands after hearing the verdict. The many officers in the courtroom, tears in their eyes, slapped each other on the back and gave the thumbs up sign.

"As far as I'm concerned, the worst is over," said Cecil "Sonny" Boswell, father of the slain officer, James C. Boswell , 29. "In our eyes, Jim was on trial." Martha Boswell, the officer's mother said, "It helps in that his memory is not besmirched."

Whether Ogan received the death penalty was insignificant, the Boswells said after the verdict. "His death is not going to bring my son back," Sonny Boswell said. "I'm not going to lose a minute's sleep over it." Officer A.R. Northcutt, who worked and played golf with Boswell, called the verdict "a big relief. It lets people know that if you do this, you're not going to get away with it.' Prosecutors portrayed Ogan as a paranoid, quick-tempered "macho man" who dreamed of becoming a CIA agent. "He snuffed out one of our beautiful people, a man who only wanted to serve," prosecutor Rusty Hardin said.

After the penalty phase, the jury deliberated nine hours before sentencing Ogan to death. Boswell's mother, Martha Boswell of Meridian, Mississippi, voiced mixed feelings about her son's killer receiving the maximum penalty. "I feel like the evidence was there for the death penalty, just like it was for the verdict of guilty," she said. "We could've lived with anything the jury came back with, and killing Mr. Ogan isn't going to bring our son back, but he needs to be punished for what he did."

The panel's 12:30 a.m. verdict came after they answered "yes" to three key questions, and the last one - did Ogan shoot Boswell on Dec. 9, 1989, without provocation by the officer - was important to the slain officer's partner, Morgan Gainer. "It's not something you can feel good about," Gainer said of seeing a man sentenced to death, "but at least Boz's name is clear now.'

In convicting Ogan, 35, of capital murder, jurors spurned his lawyers' arguments that the fatal round was fired into Boswell's temple in self-defense. Ogan claimed the officer called him "a (f***ing) snitch" and tried to shoot him.

Boswell, 28, was killed Dec. 9 on a South Main parking lot. Gainer said Ogan walked up to them, wouldn't abide by directions to wait and killed Boswell for not helping him immediately. Ogan had contended he feared that drug peddlers were out to kill him and he needed Boswell 's immediate attention. The officer was writing a traffic ticket, and a woman complainant was waiting to speak to him.

Prosecutor Rusty Hardin said a key question for jurors - whether Ogan, 35, is likely to continue to commit acts of violence - was clearly established by his acts from 1981-88. Hardin described Ogan, a St. Louis marijuana peddler turned U.S. Drug Enforcement Administration professional tipster, as a violence-prone "peeping tom" voyeur with an explosive temper.

In his testimony, Ogan had tried to downplay his volatile nature, but Hardin countered with testimony from the informant's former girlfriend, nurse Linda Dunajcik. She said their six-year, live-in affair was characterized by Ogan's mostly spurning her efforts to get him therapy for being a window peeper and having continual angry outbursts.

Dunacjik said she doesn't believe in the death penalty, but that Ogan seems likely to keep losing his temper. "It could've been me," she said quietly. Ogan said his life was literally rerouted by reading the book "I Led Three Lives". It concerns a man who infiltrated Communist organizations, and from his teens that's the spy status Ogan strived to attain. On the witness stand, Ogan testified he tried for years to get an undercover job with the CIA. All his 1988-89 efforts for the DEA were aimed at getting him a job reference.

From 1979 to 1985, St. Louis DEA agent Jerome Hutchinson said, Ogan is known to have sold 100-pound lots of marijuana from Florida every week in his home town. Hardin said the DEA viewed the pot dealer as a sort of "godsend." Not only did he have an established St. Louis import business that gave him a legitimate reason to travel abroad, Ogan spoke Spanish, French and Portuguese and desperately wanted to inform on his drug connections to get a CIA referral.

Ogan's move to Houston came in October 1989 after a Missouri judge ordered some of his secretly made tape recordings turned over to attorneys for the targets of his investigations. In Houston, the DEA told Ogan to get an apartment and "make his face known" at two clubs frequented by Hispanics. He got into a dispute with three men he had been asking about buying kilograms of cocaine.

They thought he was a "narc" and had a pistol-pointing confrontation with him outside a restaurant. The DEA told Ogan not to return to his apartment and got Houston police to take him to a motel. Ogan ended up at the Astro Motor Inn on South Main. On the night of Dec. 8, Ogan was unhappy about the heat not working in his motel room and was concerned that he had been found by some of the dealers he'd clashed with earlier.

After a dispute with the motel's desk clerk, Ogan sat in his Yugo. Then, he said, he saw Boswell 's car parked across the street at a Stop 'N Go store. Boswell and Gainer were writing a traffic ticket, and a woman involved in a domestic disturbance was waiting to see them. Gainer said Boswell walked up to Boswell 's window and identified himself as a DEA informant. Boswell told Ogan to wait, but Ogan demanded help. Boswell again told Ogan to step back and wait. When Ogan kept talking, Boswell got out of his patrol car, gun held out of sight against his leg and was unlocking the vehicle's back door when the informant fired the fatal shot. After inexplicably shooting Boswell, Gainer said, Ogan muttered, "Well, (f***) you then," before fleeing.

UPDATE: Defiant to the end, a former federal drug informant who aspired to be a CIA agent was executed for killing a Houston police officer 13 years ago. "In killing me, the people responsible have blood on their hands because I am not guilty," Craig Ogan said in a deliberate and firm voice.

He described the details that preceded the officer's death and, as he has in the past, essentially blamed slain Officer James Boswell for the officer's death. Ogan said Boswell was a "police officer who was out of control."

Ogan complained that the courts ignored what he said was evidence of "police and prosecutorial perjury." Without looking at relatives of the slain officer, who watched through a window a few feet away, he alleged that Boswell was angry and was still suffering from an on-the-job injury months before. As he paused briefly trying to collect his thoughts, the lethal drugs kicked in and Ogan snorted and coughed.

He was pronounced dead at 7:13 p.m. CST, eight minutes after the lethal dose began. The execution was delayed for nearly an hour while the U.S. Supreme Court considered a pair of 11th-hour appeals that questioned Ogan's competency and mental health. "They're trying to sell me as a nut case," Ogan said of his attorneys' efforts. "I don't appreciate that."

Ogan was fascinated with espionage, spoke several foreign languages and longed for a job with the CIA. He said he was building a track record by working as a confidential informant in St. Louis for the federal Drug Enforcement Administration. He moved to Houston in late 1989 because he feared his cover had been exposed.

The night of Dec. 9, 1989, he got into an argument with a motel clerk, walked outside and spotted a police car where Boswell and his partner were writing a traffic ticket. Ogan interrupted the officers repeatedly, citing his DEA connection, and refused their instructions to wait a few minutes.

When he persisted and Boswell got out of the patrol car to unlock the back door of the car, the officer was shot in the head. Ogan tried running away but surrendered after he was shot and wounded in the back by Boswell's partner.

Ogan blamed Boswell for the shooting and contended his reaction was in self-defense. "He went crazy," Ogan said. "This doesn't make sense. I'm pro-police. If I wanted to kill a cop, I could have blown them both off." Ogan had an "explosive temper and a short fuse," said Standley, now a Harris County judge. "He was just a time bomb, and that's what happened that night."

Ogan contended he was calm, polite and feared for his safety. "He was my son's judge, jury and executioner in a split second," Martha Boswell, the officer's mother, said. She noted Ogan had appeals and had sought a reprieve and a commutation. "As far as mercy -- he showed Jim no mercy. None whatsoever," she said.

A defense psychologist testified at his trial that Ogan suffered from functional paranoia, frequently was anxious, agitated and fearful, and believed the officer was a deadly threat to him. Jurors didn't buy the self-defense argument, convicting him of capital murder and then deciding he should be put to death. Ogan had no previous prison record but did acknowledge involvement in drug dealing.

Texas Execution Information Center by David Carson

Txexecutions.org

Craig Neil Ogan, 47, was executed by lethal injection on 19 November 2002 in Huntsville, Texas for the murder of a police officer.

Craig Ogan had worked as an informant for the federal Drug Enforcement Agency since January 1988. Upon his request, the DEA relocated him from St. Louis to Houston in late 1989 after his identity had been revealed in a court proceeding.

Ogan was under orders to not personally get involved in any drug transactions. He was also prohibited from carrying a weapon. Despite these instructions, Ogan insisted on arming himself and seeking involvement in drug transactions.

On 8 December 1989, Ogan, then 34, called the DEA agent who supervised him and told him that he was in a restaurant where he had just had an armed confrontation over a drug deal that fell through. He said that a man pointed a gun at his head and called him "narc." He said that he feared for his life and asked for an escort from the restaurant.

The agent arranged for two Houston police officers to escort Ogan from the restaurant back to his apartment. Once at the apartment, the officers watched as Ogan packed his belongings, which included a pistol, a sawed-off shotgun, and some knives. They then followed him to a motel. Ogan checked into a room, and the officers left at around 9:00 p.m.

At about 12:30 a.m., Ogan went to the lobby to complain about his telephone charges and the heater in his room. He argued loudly with the clerk and began kicking at a door.

When the clerk called 9-1-1 for assistance, Ogan left. Around this time, Houston police officers Clay Morgan Gainer and James C. Boswell pulled a car into a parking lot across the street from the motel, for a minor traffic violation.

Ogan, then 34, walked over to them and knocked on the passenger window. Officer Boswell, 29, lowered his window and asked Ogan what he wanted. After a heated exchange, Boswell got out of the car. Ogan took Boswell's pistol and shot him once in the head. He ran. Officer Gainer chased Ogan on foot, shot him in the back, and arrested him.

At Ogan's trial, Gainer testified that when Boswell lowered his window and asked Ogan what he wanted, Ogan replied, "DEA dropped me off out here, and I'm cold." Boswell told Ogan that they would help him as soon as they finished with the traffic stop, and to back away from the car.

Boswell then raised his window. Ogan, however, demanded immediate attention. He knocked on Boswell's window again, repeating that he was a DEA informant and that he was cold. Boswell told him, "You need to get out of here if you are not willing to step out of the way and wait. You either need to leave, or you are going to jail."

Ogan persisted with his demands. Boswell got out of the police car. According to Gainer, Boswell removed his sidearm from the holster and held it down against his leg. As he was reaching into the car to unlock the back door, Ogan grabbed Boswell's gun and shot him once in the head. Ogan then said, "Well, [expletive] you then" and ran.

In addition to the above testimony, Darryl O'Leary, one of the two officers who escorted Ogan from the restaurant, testified that Ogan was "extremely excited" when he arrived. O'Leary said that when he told Ogan he could not take him until a backup officer arrived, Ogan became "impatient, hostile, and loud."

Ogan had no prior criminal convictions. He had numerous assault charges that had been filed against him, then dismissed. Sally Webster, a psychologist testifying for the defense, said that Ogan suffered from paranoia and had a passive-aggressive personality, but that these disorders were not mental illnesses and had no bearing on his competency to stand trial.

She described Ogan's mental state on 8 and 9 December as "anxious, agitated, almost hyperactive, very touchy, very worried." Ogan's lawyers called Webster to testify in an attempt to assert his mental state as a mitigating factor in determining his punishment, but the tactic backfired. Instead, prosecutors convinced the jury that Ogan's history of high-strung paranoia made him a future danger to society.

A jury convicted Ogan of capital murder in June 1990 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in April 1993. All of his subsequent appeals in state and federal court were denied. In his appeals, Ogan's attorneys claimed that their client suffered from a mental illness and that his trial counsel was incompetent for failing to use that in his defense. Ogan, who had an IQ of 140, had attended college, and spoke several languages, told a reporter, "They're trying to sell me as a nut case. I don't appreciate that."

Ogan had a longstanding interest in espionage and had ambitions of joining the Central Intelligence Agency. In one of his letters from death row, he claimed that he had an appointment for an interview with the CIA the day he killed Officer Boswell. His career as a spy, however, never took off.

At his trial, DEA agents testified that they considered Ogan to be, though a "marginally successful" informant, mostly a comical figure who ducked behind newspapers whenever a stranger entered their office. They derisively called him "special agent double-oh-five" behind his back. They also criticized him for getting involved in a drug deal without their permission, then calling for their assistance when it got him into trouble.

From death row, Ogan wrote letters that were posted on an anti-death-penalty web site. In one of them, he claimed that his execution represented the "premeditated mass murder" of possibly thousands of his potential descendants. He also provided his version of the conversation between himself and Officer Boswell. In Ogan's account, he was extremely polite, courteous to a fault, and non-confrontational.

Boswell and Gainer, on the other hand, were hostile to him without provocation and called him a "[expletive] DEA snitch." Ogan wrote that when he told Boswell, "All right, sir; I was only asking for help," Boswell then threw his door open and burst out of the car "in an insane rage, running/lunging furiously right at me, like a football tackle gone berserk, and clawing frantically at his gun/holster." An anti-death-penalty spokesman who visited Ogan on death row described him as "extremely tense." Ogan's execution was delayed for nearly an hour as the Supreme Court considered late appeals questioning his mental competence.

"In killing me, the people responsible have blood on their hands, because I am not guilty," Ogan said in his lengthy last statement. He described the events of the killing and blamed Boswell. "I acted in self-defense and reflex in the face of a police officer who was out of control," he said.

He also complained of "police and prosecutorial perjury," which the courts ignored. The lethal injection was given while Ogan was still speaking. At 7:05 p.m., he was talking about Boswell's dealings with "enemy agents," when he paused briefly to collect his thoughts. The lethal drugs took effect as Ogan then snorted, gasped, and lost consciousness. He was pronounced dead at 7:13 p.m.

Man Executed for Killing Officer in 1989

By Mark Passwaters - The Huntsville Item

November 20, 2002

Craig Ogan claimed he was a successful informant for the Drug Enforcement Administration. He also claimed he was a genius. The Harris County District Attorney's Office and 12 jurors said he is nothing but a cop killer. For that reason, he was executed Tuesday evening at the Huntsville "Walls" Unit.

Defiant until the end, Ogan claimed the "real crimes" in his case were "the attempted murder and intimidation of a federal drug informant by Officer James Boswell and Officer Clay Morgan Gaines."

Ogan, who was a DEA informant -- but never hired by the federal government -- shot Boswell on the night of Dec. 8, 1989 after Boswell did not respond to his demands for assistance quickly enough. Even during his final statement, Ogan claimed he was acting in self-defense.

"I acted in self-defense and reflex in the face of a police officer who was out of control," he said. "The people responsible for killing me will have blood on their hands for an unprovoked murder." During his final statement, which lasted several minutes, Ogan repeatedly spoke of "physical evidence" and "possible motives" Boswell might have had to hurt him.

While speaking about Boswell's dealing's with "enemy agents," Ogan suddenly snorted, gasped twice and was silent. At 7:05 p.m., the lethal dose of chemicals had been started. "Very good," commented one unidentified witness.

Ogan was pronounced dead at 7:13 p.m. His execution, which had been scheduled to take place an hour earlier, had been delayed while two final appeals were heard by the U.S. Supreme Court. One of those appeals claimed Ogan -- who boasted of his high IQ -- could not be executed because he was mentally retarded.

Boswell's mother, three brothers and a sister remained silent during Ogan's final statement, but spoke briefly to reporters afterward. "He didn't say anything he hadn't already said," Martha Boswell, the slain officer's mother, said. "It didn't surprise me; I was OK with it." Martha Boswell called Ogan "Jim's judge, jury and executioner, without a second thought." "(Tuesday) is the night justice was finally served, plain and simple," she said. "It's way past time."

Boswell's father Sonny, confined to a wheelchair, waited outside the "Walls" Unit with nearly 80 motorcyclists who came to show their support for the Boswell family. Most of the motorcyclists were members of the Houston Police Department or Harris County Sheriff's Department and included Gainer, Boswell's partner. "It's time. It's just time," Gainer said. "I want justice to be done," Sonny Boswell said as he clutched a picture of his son. "The State of Texas pronounced sentence on him, and I think it should be carried out."

Originally from Missouri, Ogan was described as a "marginally successful" DEA informant who had moved to Houston after his cover had been blown. After he moved to Houston, he ignored warnings from DEA agents to keep a low profile and became known on the city's drug scene. The night of the murder Ogan was moved from his apartment to a motel by DEA agents after a drug dealer put a gun to his head and accused him of being a "DEA snitch."

Ogan became enraged when he discovered the motel lacked heat and long distance telephone service. He went to the motel's office to complain, yelling at the clerk and kicking a door in frustration. When he stormed out of the office, he noticed a police cruiser nearby. The vehicle was driven by Boswell and Gainer.

Ogan walked over to the cruiser and rapped on Boswell's window. When Boswell asked Ogan what he wanted, he said, "DEA dropped me off here, and I'm cold." Since the officers were in the middle of a traffic stop, Gainer later testified, Boswell asked Ogan to step back until they were done. Ogan, making what he describes as a "polite request," knocked on the window a second time and continued to ramble about his DEA work.

Boswell told him again to back away, and when he refused, Boswell said, "You need to get out of here if you're not willing to step out of the way and wait. You either need to leave or you're going to jail." Boswell then got out of the squad car and unlocked the back door of the vehicle. Suddenly, Gainer testified, Ogan grabbed Boswell's gun, shot him once in the head, and fled. Gainer then shot Ogan in the back and arrested him. Boswell was dead before his body hit the ground.

Ogan claimed Boswell was "in an insane rage" when he got out of the car. "I saw his gun clear the holster and/or come into view," he wrote. "Reflex took over ... Then I saw the gun in my hand as the horrible realization crept over me. I had just shot a policeman in the head." Ogan used claims of self-defense during his trial and said he feared for his life when he shot Boswell. A Harris County jury did not buy into Ogan's story, convicting him of capital murder on June 25, 1990, and sentencing him to death four days later.

While incarcerated at the Polunsky Unit in Livingston, Ogan wrote a remarkable, rambling diatribe about his case -- much of which he repeated in his final statement -- and posted it on the Internet. In it, he claimed the state of Texas would commit "premeditated mass murder" by executing him and halting his ability to procreate. "Those future Ogans ... for anyone knows (may) be blessed with the intellect of an Albert Einstein or George Washington Carver," Ogan wrote. "Haven't they a right to life, regardless?"

Ogan went on to claim Boswell and Gainer committed "federal felonies," that Gainer "via his fabrication and perjury, has thus far avoided imprisonment," and that he was preparing to accept "an offer of immediate employment" with the CIA when he shot Boswell. In the end, none of Ogan's claims were able to reverse his sentence. As the execution witnesses began to filter out of the "Walls" Unit, the motorcyclists wordlessly turned and drove off into the night.

Houston Cop-Killer Executed

By Allan Turner - Houston Chronicle

November 19, 2002

HUNTSVILLE -- Cop-killer Craig Ogan went to his death in Texas' execution chamber Tuesday night proclaiming his innocence, labeling Houston patrolman James Boswell a "policeman out of control" and insisting that he fired a bullet into the officer's head in self-defense.

"In killing me the people responsible have blood on their hands, because I am not guilty," Ogan said in his last statement, which eventually was cut off by the flow of deadly drugs. "I acted in self-defense and by reflex to an unprovoked attempted murder by a policeman out of control."

Speaking rapidly as Boswell's mother and other family members watched from an adjacent witness room, Ogan accused prosecutors of fabricating evidence in his 1990 trial. He said Boswell, 29, was "mad at the world" as a result of a brutal beating he had suffered seven months earlier at the hands of a crack cocaine dealer.

After the attack, Boswell was angry with "the mayor, the police chief, the fire chief, angry at the world, perhaps with some justification," Ogan said. His statement stopped in mid-sentence as the drugs took effect. In a meeting earlier, Walls Unit warden Neill Hodges had told Ogan he would have two minutes for his final comments. The drugs were given at 7:05 p.m.; he was pronounced dead eight minutes later.

Ogan was the first of two killers scheduled to be executed this week. William Wesley Chappell, 66, is set to die today for the 1988 murder of a 50-year-old Tarrant County woman and her daughter -- relatives of a 3-year-old girl Chappell was convicted of molesting four years earlier. Chappell was free on bond, pending appeal, when he shot both women in the face with a 9mm pistol, allegedly to eliminate them as trial witnesses.

The execution of a third killer, James Lee Clark, 34, set for Thursday, was postponed Monday by the Texas Court of Criminal Appeals after his lawyers argued that he is mentally retarded. The court cited the U.S. Supreme Court's ruling in June that barred execution of the mentally retarded. Clark had been convicted of the 1993 rape, robbery and murder of a 17-year-old Denton High School student.

Ogan's execution took place after the Supreme Court rejected two appeals filed on his behalf. The Texas Board of Pardons and Paroles also declined to block the execution. As Ogan went to his death, about 80 law enforcement officers and their sympathizers -- members of two Houston motorcycle clubs -- gathered at the Walls Unit to show support for Boswell's family.

"Justice was finally served tonight," said Martha Boswell, the slain officer's mother. "We have waited for this 12 years. . . . I had faith this would happen, and it did." She said she felt no compassion in watching her son's killer die. "Nothing has changed," she said of her feelings.

Texas Executes Cop Killer

By Robert Anthony Phillips - TheDeathHouse.com

November 19, 2002

Craig Owen, a former federal drug informant who shot and killed a Houston police officer, was executed by lethal injection here tonight after a last ditch appeal to the Supreme Court delayed his trip to the death house by an hour.

In December 1989, Ogan shot Officer James Boswell in the head after the officer did not immediately respond to Ogan's request for assistance. Ogan claimed he shot Boswell in self-defense.

As he lay strapped to the execution gurney awaiting death, Ogan, 47, used his last words to proclaim his innocense and accuse the state of murder. "The people responsible for killing me will have blood on their hands for an unprovoked murder," Ogan said. "I am not guilty."

Ogan's scheduled execution just after 6 p.m. was delayed while the U.S. Supreme Court considered last-ditch appeals filed by his lawyers. Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, said prison officials received word at 6:45 p.m. that the high court had rejected the appeals.

Within 10 minutes, she said, Ogan had been strapped to the execution gurney in preparation for death. The lethal drugs began to flow into him at 7:05 p.m. and he was pronounced dead at 7:13 p.m., Lyons said. Ogan was the 30th convicted killer executed in Texas this year, by far the highest in the nation. Another execution is scheduled Wednesday.

Ogan, in an interview with the Associated Press several weeks before his execution, said his lawyers were trying to "sell me as a nut case" and admitted he had little chance of escaping the death chamber. "I killed a cop and this is Texas," Ogan told the AP. There were reports that several dozen motorcycle riding police officers arrived to stand vigil outside on the street from the prison in honor of Boswell.

The slain cop's mother, had told the Texas City Sun that she was going to witness the execution. “I’m going to stand there and watch that man die,” she said. “His face was the last face that my son saw, if I could I’d make sure that Jim’s family’s faces were the last that he saw.”

Demand For Help Turns To Death

Ogan, described in court documents as paranoid and having a personality disorder, claimed he shot Boswell in self defense after the officer tried to shoot him. The shooting took place Dec. 9, 1989. Ogan had walked over to a police car in a parking lot in Houston, where Boswell and another officer had made a traffic stop.

Ogan had earlier become involved in a dispute at the motel he was staying in. Ogan knocked on the window of the patrol car, telling Boswell that he was a DEA informant and that he was cold. Boswell told Ogan to wait until he finished with the traffic stop. Ogan was so persistent and agitated that Boswell threatened to arrest him if Ogan didn't back away from the car.

When Boswell finally got out of the car, he had apparently unholstered his weapon, court documents stated. Holding the gun behind his right let, Boswell reached into the patrol car to unlock the back door to let Ogan in. Ogan pulled out a gun and shot Boswell in the head, shouting an expletive. Ogan tried to run, but another police officer with Boswell chased and shot him in the lower back. Ogan apparently felt drug dealers were going to kill him.

Court documents revealed that the DEA had relocated Ogan from Missouri to Houston because he had been identified as an informant. When he was relocated, he was told by government agents not to get involved in any drug investigations. However, he continued to do so, authorities claim.

HPD Officer Remembered

By Michael Clements - The Texas City Sun

November 19, 2002

Boswell family of Meridian, Miss. came back to Texas this week. The family, who lived in Texas City more than 17 years, didn’t come back to visit friends or relatives. They came to Huntsville to see a man die. Unless the state or courts intervene, at 6 p.m. Craig Neil Ogan, 48, will be put to death for the Dec. 9, 1989 killing of 29-year-old Houston police officer James Boswell.

well’s mother, Martha, said the trip wasn’t about revenge, or anger or even closure. She said she came to Huntsville simply because she wanted to be there when the legal process was completed. “I’m going to stand there and watch that man die,” she said. “His face was the last face that my son saw, if I could I’d make sure that Jim’s family’s faces were the last that he saw.”

well’s story actually began when the police officer was 10 years old. That’s when Boswell’s father, Sonny, moved the family to the Texas Gulf Coast so he could go to work in a shipyard. For the next 17 years the Boswells enjoyed life in Texas. Martha Boswell said the Houston-Galveston industrial complex provided employment for Sonny. That enabled him to provide well for his wife and children. James Boswell graduated from Texas City High School and went to Lamar University where he studied to be an athletic trainer.

le he loved sports, Martha Boswell said her son was not particularly athletic. He decided to become a trainer so that he could work with people. Martha said people were drawn to her son’s outgoing personality. “He was a comedian,” she said. Texas City Police detective Paul Edinburgh agreed. Boswell was a regular fixture in the Edinburgh home because he was good friends with his older brother, Lewis. Edinburgh said that regardless of their mood when he found them, Boswell could leave just about anybody smiling. “If you were feeling down or lonely, he had a knack for showing up and he would leave you rolling on the floor laughing,” Edinburgh said.

nburgh remembered Boswell as a talented artist who did impressions and told jokes to entertain his family and friends. “He could talk to you in your voice and make you think you were talking to yourself,” said Martha Boswell.

well started his career as an athletic trainer in the late 1970s. Like a lot of young men, he soon realized that as much as he liked working with athletes, teaching and coaching might not have been his calling. One of his childhood friend’s, Donny McKinney was a police officer. McKinney would share stories of his work and something about those stories caught Boswell’s attention. He decided it was time for a career change. But, true to his character, Boswell’s mother said he felt a responsibility to check with her and his father since they had financed his college education.

y told him that their only concern was that he was happy with his decision. “His Dad and I both told him, ‘You’re the one that has to live with what you do,’” she said. Boswell went through the police training program at Sam Houston State University. In 1984 he was hired as a Houston Police Officer. He was assigned to an area in southwest Houston known for its criminal activity. Martha said her son reveled in his new work. “That’s where he wanted to work,” she said. “He loved being a cop.”

wasn’t long before Boswell was influencing young men in the same way his friends had influenced him. Edinburgh said that when he started his police training at College of the Mainland, he rode with Boswell a few times. He said his friend’s best qualities came out when he was on patrol. “He showed me the importance of honesty and integrity, that’s just the way he worked,” he said.

1987, Boswell’s family moved back to Mississippi. Sonny had lost his job with a construction company and when he found a new job at a hospital, the family decided to leave. Boswell stayed in Houston to continue his law enforcement career. According to the Texas Department of Criminal Justice Web site, on Dec. 9, 1989, Boswell and his partner were in the middle of a traffic stop on South Main near the Astromotor Inn when they were approached by Ogan.

Ogan was an informant for the Drug Enforcement Agency who had just been involved in an altercation at a motel. Ogan believed that his cover had been blown and that he was in danger, so he asked the officers to help him. Since no one was actually threatening Ogan at that point, and the officers were busy doing something else, Boswell told Ogan to wait. Ogan became agitated and demanded the officers listen to him. Boswell decided to put Ogan in his patrol car and turned to open the car door. When he did, Ogan pulled a pistol and shot Boswell once in the left temple. He turned to run and was shot once in the lower back by Boswell’s partner.

Martha said she got the telephone call from Boswell’s brother Joey, who owned a business in Texas City at that time. He told her that Boswell had been hurt. She called the hospital and learned that it was worse than that. Martha said she and Sonny came back to Texas to get their son and take him home to be buried in Mississippi. “I wasn’t going to leave my baby out there,” she said.

Then they prepared for the trial. She praised the work of the judge, who she said ensured that everyone involved in the trial followed the letter of the law. And she scoffed at Ogan’s claim that he shot in self defense after the officers threatened him. Edinburgh, who also attended the trial, said there was no way his friend threatened anyone that day. “I just can’t see that,” he said. “It doesn’t compute to me.”

Edinburgh will be in Hunstville tonight. While he won’t witness the execution, he said he feels a responsibility to be there for his friends. His brother, who was much closer to Boswell will be there, and Edinburg said he wants to do what he can. “I’m going for a lot of different reasons,” he said.

When she talked with the Texas City Sun two weeks ago, Martha said she wasn’t sure how many of her family would actually witness the execution. She said they weren’t coming for any reason other than to see justice done. She said she purposely pushed the anger and hurt aside because she didn’t believe Ogan was worth that effort. “From the day he killed my son, I’ve never let him take up a lot of space in my mind,” she said.

National Coalition to Abolish the Death Penalty

Graig Ogan, Jr. (TX) - Nov. 19, 2002 - 6:00 PM CST, 7:00 PM EST

The state of Texas is scheduled to execute Graig Ogan, Jr. Nov. 19 for the 1989 murder of James Boswell, a Houston police officer.

Ogan, a white man, claimed he shot Boswell in self-defense after the officer attempted to pull out his gun while lunging toward him. Conflicting accounts, one from Boswell’s partner – Morgan Gainer – and one from the defendant himself, told different versions of the events that occurred immediately before the shooting. At trial, the jury determined that Ogan’s self-defense claim lacked credibility, and found him guilty of murder.

The victim’s family and friends found relief in the verdict, as it publicly cleared Boswell of any wrongdoing in the incident. However, they expressed mixed feeling about the death sentence, repeatedly recognizing that little good could come out of another killing. Sonny Boswell, the victim’s father, said after the trial, “His death is not going to bring my son back.”

Ogan – an informant with the Drug Enforcement Agency (DEA) in Houston – allegedly approached Boswell’s police car to seek help because he was in mortal danger at the hands of armed drug dealers. He claimed the officer stepped out of the car and attacked him; Officer Gainer disagreed, saying the aggressive Ogan shot his partner without provocation.

Sally Webster, a forensic psychologist, testified for the defense at trial, stating that Ogan experienced several psychological problems when he arrived in Houston (from St. Louis, which he left in 1989 after several narcotics trafficking prosecutions revealed his identity). She claimed he suffered from functional paranoia, and frequently felt anxiety, agitation, and fear for his life. In his appeals, Ogan argued that his trial counsel failed to recognize the extent of his mental health problems; such a mistake could have seriously influenced the outcome of his trial.

He also charged that his attorneys failed to object to supplemental instruction on mitigating evidence at the conclusion of the penalty phase. This failure, which minimized the importance of Ogan’s emotional instability in the jurors’ eyes, paved the way for this execution.

The Boswell family gained no satisfaction from the death sentence in the courtroom, and they do not expect any closure from Ogan’s pending execution. Carrying out this sentence would only add to the continuing cycle of violence and further emphasize the hypocrisy of the death penalty. Please write the state of Texas and protest this execution.

Canadian Coalition to Abolish the Death Penalty

(Ogan Homepage)

Information provided by Craig Ogan and his supporters

For over nine years, the State of Texas has been holding me hostage, torturing me, and threatening to murder me, because I fatally shot and killed a Houston Police officer when he attempted to murder me for being (in his and his partner’s words) “a f---ing DEA snitch” (a voluntary undercover operative for the United States Drug Enforcement Administration [DEA] since 1973, I’d sought their help because I was in imminent mortal danger from armed drug dealers; as the City of Houston Police Department [HPD] had rescued me from mortal danger, hours earlier, at the DEA’s request, I’d no reason to anticipate that these officers would try to kill me, now, in response to my polite request for emergency assistance). I have compelling proof that I’m telling the truth. --- Craig Ogan

"TEXAS MURDERING CHILDREN AND FAMILIES" by Craig N. Ogan

For over nine years, the State of Texas has been holding me hostage, torturing me, and threatening to murder me, because I fatally shot a Houston Police officer when he attempted to murder me for being (in his and his partner’s words) “a f---ing DEA snitch” (a voluntary undercover operative for the United States Drug Enforcement Administration [DEA] since 1973, I’d sought their help because I was in imminent mortal danger from armed drug dealers; as the City of Houston Police Department [HPD] had rescued me from mortal danger, hours earlier, at the DEA’s request, I’d no reason to anticipate that these officers would try to kill me, now, in response to my polite request for emergency assistance). I have compelling proof that I’m telling the truth.*

When and if the State of Texas executes me, however, they (Governor Bush, legislators, Texas Supreme Court justices, judges, jurors, citizens & voters who tolerate and support the death penalty,...) will not only be murdering me (and covering up the officers’ federal-felony attempts to murder this federal drug operative). They (with official approval of the President and Supreme Court of the United States) will, in effect, also be killing the children (and their children, and those children’s children,...) whom I might otherwise beget. I.e., Texas will be killing and destroying a potential branch of my family’s bloodline, thereby committing, under color of law, what amounts to PREMEDITATED MASS MURDER of dozens (or hundreds, or thousands,...) of Ogans who might otherwise be born, during this era and who knows how many generations to come.

Those future Ogans (who might otherwise enter the world) have not been accused, much less convicted, of any crime, whereas one or more of them might, for all anyone knows, be blessed with the intellect of an Albert Einstein or George Washington Carver, or with other attributes and talents that could vastly benefit humanity and alter the course of history. Who (but God) can say with certainty that one of them would not be a medical researcher who develops a vaccine for some deadly disease(s), saving millions of lives; or an astrophysicist who enables humans to colonize other planets; or a brilliant diplomat who prevents a global nuclear war and saves the human race? HAVEN’T THEY A RIGHT TO LIFE, REGARDLESS?

Capital punishment is thus also MASS ABORTION, before conception (before human conception, i.e.; we don’t know when God’s conception of a particular human occurs), forcibly carried out by the state, in a vicious vindictive attack on the entire (present and future) family of a condemned person.

As it is applied in a racially (and otherwise) discriminatory manner, capital punishment is also GENOCIDE, disproportionately destroying bloodlines of disadvantaged races, classes, etc. Some may argue that life imprisonment, without conjugal visits, has the same effect, as this also prevents the prisoner from having any (more) children. I agree, and I submit that this is a powerful moral and legal argument for allowing conjugal visits in prisons. However, where there’s life there’s hope; so, capital punishment differs, in this regard, in that it is absolute and final. Either way, the state is playing God, at an incalculable cost to all humanity.

Craig N. Ogan, 25 December 1998
Texas Death Camp Hostage #000979
Polunsky Unit, Texas Death Camp
3872 FM 350, South
Livingston, Texas 77351 USA

* Reverend Steve Ackerman, referred to my case in 1992 by then-Treasurer of Missouri Mr. Wendell Bailey, has found irrefutable evidence (some of which in the original police report) of my veracity and innocence, and of extensive fabrication, perjury, and cover up by the police and prosecution. Rev. Ackerman can be reached by phone at 1-520-881-2650, or by writing to him at 2444 East 4th Street, Tucson, Arizona 85719 USA. We need your help, PLEASE, before Texas murders me and my progeny. Thank you.

STATEMENT OF FACTS RE JAMES BOSWELL SHOOTING OF 9 DECEMBER 1989

By Craig N. Ogan, Accused

Please bear in mind, as you read this account, that I have offered, since just after the event, to submit to polygraphs, voice-stress tests, interrogation under truth serum or hypnosis, and/or any other reasonable truth-eliciting test, to prove that I was and am telling the truth, the whole truth, and nothing but the truth, about every detail I could possibly recall re the tragedy (and note that I offered at my “trial” to take Sodium Pentothal, e.g., to further enhance my memory). Specifically, I have made this offer, voluntarily and on my own initiative, to the trial court, to the United States Drug Enforcement Administration (in phone calls I was pre-advised were being tape-recorded), and (in letters written in my hand and signed with my legal signature) to the Federal Bureau of Investigation, the United States Naval Investigative Service, and the Central Intelligence Agency. Also, please keep in mind that I had been a federal operative/informant, voluntarily, since 1973; and the Houston Police Department (HPD) had just saved my life, about four hours earlier. Moreover, when this shooting occurred, I was just a few hours from a scheduled meeting with a CIA agent, to accept his offer (approximately three hours earlier) of “immediate employment”, helping rescue U.S. citizens illegally imprisoned overseas (just as I am now, in the USA).

On 9 December 1989, at approximately 1:00 A.M., on South Main Street in Houston, Texas, I walked up to an HPD squad car on a convenience-store parking lot, tapped lightly on the passenger-side window, and entered “The Twilight Zone”.... -

OFFICER [JAMES C. BOSWELL] (rolling his window down partway): “You got a problem?” (Note: Possibly not his exact words; I cannot recall, clearly or with certainty, his first sentence; but he seemed irritable, or even hostile and confrontational, making me anxious to quickly assure him, by word and manner, that I posed no threat, was respectful and had a serious request). -

ME: “Oh, I’m just a little upset with this (expletive) motel over here...” (Then, quickly and apologetically:) “Pardon my French, sir; I’m just a little upset with THEM. Anyway, I wonder if you could help me, sir; your HPD just removed me from a very precarious situation and escorted me to this area, a few hours ago, at the request of the DEA...” -

OFFICER BOSWELL (interrupting, loudly and belligerently): “What the fuck you talking about, ‘the DEA’?” -

ME (tentatively): “Yes, sir, I’m working as a C.I. [confidential informant] for the DEA.” -

OFFICER BOSWELL (leaning back against his partner and sneering sarcastically/contemptuously at me, and demanding loudly and hatefully): “You mean to tell me you’re a fuckin’ DEA snitch?!” (Then, even more loudly and menacingly) “You want me to tell everyone out here you’re a fuckin’ snitch for the DEA?!” (Note: The “everyone out here” whom he referred to included several small groups of rough-looking people loitering nearby, behind me. For a number of reasons, I suspected they might be selling drugs, most likely crack cocaine.) -

ME (startled, confused, and terrified by his hateful angry reaction to learning that I was a DEA informant, and by his threats to blow my cover [which I feared he might have already done], I suddenly felt trapped, as I was afraid to turn around and have my face seen by the drug dealers [?] behind me, but was also very afraid of this [heavily-armed] policeman [whom I’d perceived as an island of security, moments before] who’d suddenly revealed himself to be a threat to my life. So, I leaned forward slightly and asked, politely and softly): “Sir, is that really how you feel about what I do? I thought I was helping the police.” [Note: I was instinctively trying to defuse and contain his (for me, life-threatening) outbursts.] -

OFFICER BOSWELL (screaming explosively, he appeared to be possibly on the verge of exiting the car): “You’re fuckin’ right that’s how I feel! Now get the fuck outa here!” (Note that his partner, Officer Clay Morgan Gainer, also called me a “fucking snitch”; I believe it was at this point in time.) -

ME (retreating quickly and speaking timidly/apologetically): “All right sir; I was only asking for help.” -

OFFICER BOSWELL: “WHAT did you say, motherfucker?!”

ME: “I said, ‘All right, sir; I was only asking for help.’ ” -

OFFICER BOSWELL (throwing his door open and bursting out of the car in an insane rage, running/lunging furiously right at me, like a football tackle gone berserk, and clawing frantically at his gun/holster): “I don’t give a fuck WHAT you’re asking for!” -

ME (paralyzed/hypnotized by terror, with nowhere to run, duck, or hide, as it sank in [through my shocked disbelief] that this police officer was violently attacking me and was about to shoot me, at point-blank range, I still did not react to defend myself; but in a desperate appeal for calm/reason, I dropped, instinctively, into a defensive stance, bracing myself for the imminent impact [of bullets or his body, or both], and yelled): “Sir!” (My right hand may have moved toward my gun, at this point; I’m not sure, as it all happened so fast. Again, I’ll gladly submit to memory-enhancement efforts by the FBI, et al.)

He screamed, “You son-of-a-bitch!”; and I saw his gun clear the holster and/or come into view. Reflex took over. I heard an explosion and saw his body slam back against the side of the patrol car and crumple to the ground, lifeless (i.e., he appeared lifeless; I later learned that he had lived a few more hours, although he never regained consciousness). Then I saw the gun in my hand, as the horrible realization crept over me...; I had just shot a policeman in the head. I said something (“Oh, my God!” [?]), in horror and dismay. His partner was kneeling outside of his side of the car, frantically yelling into his radio, “My partner’s been hit!” He was an easy target, as he was right across the front seat from me (apparently, I’d run forward to the side of the car, after firing, because I know I had retreated quite a good distance, prior to Officer Boswell’s exit ó far enough for him to break into a furious run, and for me to overcome my shock and disbelief enough to react in time); and I considered for a moment that he would probably blow me in half with a 12-gauge (shotgun) if I didn’t shoot him first. But he wasn’t reaching for a gun or pointing a gun at me, at that moment; he was in a panic, and I clearly recall looking into his eyes and seeing and feeling his fear. So, even though I expected him to kill me, I could not bring myself to shoot him, with even a few moments to think about it, and after 16 -17 years of voluntarily working on the side of law enforcement (also, I’d never even hunted or shot an animal before; so, I’m sure I was in a state of shock and confusion). Instead, I turned around and ran, in panic and horror, running being the only apparent option to shooting this officer, too (he’d just sat there agreeing with Officer Boswell that I was “a fucking DEA snitch”, vs. encouraging him to stop threatening and endangering my life and find out who I was and what kind of help I needed; so, what else could I expect from him but gunfire, now that I’d been forced to shoot his partner?). I’m told that I ran about 200 feet before a .45 slug slammed into my back, about an inch left of my spine, at or just below the waist. Skidding to a halt, I threw my gun down, put my hands up, and yelled, “O.K.!” He ran up behind me, screaming, “Where’s the gun? Where’s the fucking gun?,” to which I responded cooperatively, telling him I had thrown it down in the grass, just in front and to the right of me. He threw me face-down on the ground, cuffed my hands behind my back, and began beating and kicking me. Half of my back seemed to have been blown away, blood was gushing out of me, and I was sure I was dying (in fact, at one point I had a vision [?] in which I believed I had died, and that I was “going to God”, spinning/flying through a tunnel of kaleidoscopic colors, passing through doorways or gateways, always toward an intense white light which I believed was God. It may have been my subconscious mind recording images from a rushing ambulance, or as I was rushed through hospital corridors. I’ve since read about research on near-death experiences, however; and many of the accounts I’ve read described something very similar to what I saw and experienced. Who knows?). Also, I was in shock, thoroughly terrified, and absolutely hysterical with grief that I had just shot a human being (a policeman!) in the head (& at gruesomely point-blank range, too). As Officer Gainer was beating and kicking me, I even asked him, “Why don’t you just go ahead and put a bullet in my head and get it over with, and go help your partner?,” to which he responded, “If there weren’t so many witnesses, I would kill you, you son-of-a-bitch!” A paramedic testified at my “trial” that, right after shooting Officer Boswell and being shot, I was saying, “Oh, please don’t let him die! Let it be me!” An HPD officer who saw me right after the shooting provided similar testimony (grudgingly).

Tragic though all of this was and is, I am not guilty of capital murder, as I reacted, by reflex, in legally (and I pray, morally) justifiable self-defense, at the last possible moment, after/while attempting to retreat in the face of Officer Boswell’s illegal unprovoked attempt to murder me because (!!!) I was a DEA informant. It is easy to understand why HPD, Officer Gainer, and the prosecution preferred to conceal the truth, commit perjury, and execute an innocent man: HPD officers had shot 40 citizens to death, already, in 1989, including Ida Lee Delaney and Byron Gillum (both of which shootings had attracted national and even international media and public attention and condemnation, as had the sheer number of such shootings [a 122% increase over the 18 fatal shootings by HPD in 1988], many of which were highly controversial for their dubious justification, if any).

Besides, Officers Boswell and Gainer both committed federal felonies (VIOLENT INTIMIDATION AND ATTEMPTED MURDER OF A FEDERAL WITNESS) against the United States and me; thus, if the truth had been exposed, Officer Gainer most likely would have been facing a long stay in a federal penitentiary; Officer Boswell would no longer be a viable “HPD hero who died in the line of duty”; and HPD’s already-scandalous reputation would have been burdened with yet another shocking case of police brutality. (Note: the DEA had just arrested two HPD officers, hours before my tragic encounter with Officers Boswell and Gainer, for selling confidential information from HPD computers to drug dealers; but my jurors were not told of this, even as they were not told that Officer Boswell had been beaten severely with his own nightstick, seven months earlier, by a drug suspect he was trying to arrest; Officer Boswell’s injuries included brain contusions, 72 stitches in his head, and loosened teeth that required months of treatment.) So, Officer Gainer, via his fabrication and perjury, has thus far avoided imprisonment (and fraudulently passed himself off as “the hero cop who shot his partner’s murderer, arrested him, and helped secure his imprisonment and sentence of death”), and (as far as I know) has kept his job (and badge, 12 gauge, and .45), at great risk to public safety, and at the cost of truth, justice, and my life, freedom, and reputation (more than nine years of hell, already, for my family and me).

God has not abandoned me, however. When I wrote to Mr. Wendell Bailey, then-Treasurer of Missouri, about 6-7 years ago, pleading for his help in persuading the FBI or some other agency (or private investigator, etc.) to investigate this unlawfully and wrongfully imprisoned and condemned Missourian’s allegations, a man of God responded.

Rev. Steve J. Ackerman, after being referred to my case by Mr. Bailey, has been investigating ever since (1992), and has found compelling and abundant evidence of my veracity and actual innocence, and of extensive fabrication, perjury, and cover up by Officer Gainer, HPD, and the prosecution. But he is working on a severely limited budget, and has not received much cooperation, so far, from my Texas-appointed attorneys. Please contact him (Rev. Steve J. Ackerman, (phone: 1-520-881-2650; address: 2444 East 4th Street, Tucson, Arizona 85719 USA), to learn more about what his investigation has revealed; and

PLEASE TRY TO HELP US BEFORE TEXAS MURDERS ME. Thank You ! - Craig N. Ogan

297 F.3d 349

Craig Neil Ogan, Petitioner-appellant,
v.
Janie Cockrell, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-appellee

No. 00-20942

United States Court of Appeals, Fifth Circuit.

June 28, 2002

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Petitioner-Appellant, Craig Neil Ogan ("Ogan"), appeals the district court's denial of his Petition for Writ of Habeas Corpus regarding his claims of ineffective assistance of counsel. For the reasons assigned herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY

I. Facts of the Crime

In late 1989, Ogan moved from St. Louis, Missouri to Houston, Texas. Ogan had acted as a confidential informant for the Drug Enforcement Agency ("DEA") in St. Louis. However, upon his request, the DEA relocated him to Houston after state court prosecutions for narcotics trafficking revealed his identity.

In Houston, DEA Agent Norman Houle ("Agent Houle") supervised Ogan. Agent Houle warned Ogan that the DEA did not permit informants to carry weapons. However, while in Houston, Ogan carried a firearm despite the DEA policy. Agent Houle also instructed Ogan not to get involved in any drug deals and to "just let his face be known" around Houston. Nevertheless, Ogan sought involvement in drug transactions.

On December 8, 1989, Ogan called Agent Houle from Taco Rico, a Houston restaurant, and told him that he had encountered someone with whom he had previously attempted to set up a drug deal. The drug deal had not realized, but resulted in an armed confrontation.

Ogan told Agent Houle that at the restaurant the man had put a gun to Ogan's head, and that he had put a gun to the man's head. The man was still outside the restaurant when Ogan called Agent Houle. Ogan told Agent Houle that he was afraid and asked him to come to the restaurant and escort him safely out.

Agent Houle arranged for Houston police officers to accompany Ogan off the premises. Houston Police Officer Darryl O'Leary ("Officer O'Leary") arrived to assist Ogan at around 8:00 p.m. According to Officer O'Leary, Ogan was extremely excited.

Ogan requested that the officer take him to his apartment so that he could remove some papers and tapes related to a DEA investigation. However, Officer O'Leary told him that he could not take him there until after backup arrived. Ogan then became impatient, hostile, and loud.

Houston Police Officer Steven Hanner ("Officer Hanner") arrived to provide backup for Officer O'Leary. The officers took Ogan to his apartment. Ogan retrieved some items from his apartment, including a .38 caliber pistol, a "sawed-off" shotgun, and at least two hunting knives. The officers followed Ogan to a Best Western Motel, now a Motel 6, and left him there at around 9:00 p.m.

Ogan made two or three long-distance telephone calls after he checked in to his motel room. Shortly thereafter, a motel employee disconnected his long-distance service because he had failed to leave a deposit for such service. Ogan phoned the motel office and requested that the service be reconnected. He then went to the office to pay for his calls and to leave a deposit.

While there, he complained that the heater in his room was not functioning properly. He was loud and upset as he complained. He eventually left the office but returned shortly thereafter, at around 12:30 a.m., to complain again. He requested his money back for the long-distance calls.

Because Ogan grew angrier as he confronted the motel attendant, the attendant threatened to call security. Ogan began kicking the office door, and the attendant dialed 911. Ogan then left the motel and began walking toward a Stop-n-Go store.

As he was leaving, he saw a police officer across the street from the motel. He walked over to the patrol unit and looked in the passenger side window. Houston Police Officers Morgan Gainer ("Officer Gainer") and James Boswell ("Officer Boswell") were sitting in the patrol unit. They had driven into a parking lot to make a traffic stop.

Ogan knocked on the window of the patrol unit. Officer Boswell let his window down and asked Ogan what he wanted. Ogan responded that the DEA had left him at the motel and that he was cold. Officer Boswell told Ogan to back away from the car until the officers finished the traffic stop and then let his window back up.

However, Ogan knocked on the window again. Officer Boswell opened the door and again asked Ogan to step away from the car. Ogan stated that he was a DEA informant and that he was cold. Officer Boswell again told Ogan to wait. Ogan repeated his previous statements, and Officer Boswell told him that he would have to wait, leave, or go to jail. Officer Boswell then got out of the patrol unit.

Ogan demanded immediate assistance. Officer Boswell unholstered his weapon, and holding the gun behind his right leg, reached into the patrol unit to unlock the back door. At this point, Ogan pulled out a gun and shot Officer Boswell in the head and then stated "Well, fuck you then." Ogan then ran. Officer Gainer, who had seen Officer Boswell fall against the back door of the patrol unit, chased Ogan. The officer caught Ogan, wounding him in the process.

II. Ogan's Trial: Guilt-Innocence Phase and Penalty Phase

On February 2, 1990, the State of Texas indicted Ogan for the capital murder of a police officer. At trial, Ogan testified that Officer Boswell had threatened to tell people that he was a "DEA snitch." He also testified that Officer Boswell was "lunging" toward him and frantically attempting to remove his gun from the holster.

Ogan claimed to have killed Officer Boswell in a reflexive action, without thinking and fearing that Officer Boswell was going to shoot him. Sally Webster ("Webster"), a forensic psychologist, testified on Ogan's behalf during the guilt/innocence phase of the trial. She testified that Ogan was anxious, agitated, and fearful for his life after moving to Houston. She also stated that he suffered from functional paranoia, which, according to Webster, is not a form of insanity. She testified that Ogan was intelligent but used his intelligence inefficiently. She also determined that Ogan had a passive aggressive personality disorder. The jury found Ogan guilty.

During the penalty phase of the trial, the State presented testimony from several witnesses regarding Ogan's history of aggressive behavior. Ogan countered this evidence with testimony from several friends and relatives. The jury answered affirmatively the three special issues given after the sentencing hearing,1 and the trial court sentenced Ogan to death.

III. Direct Appeal to the Texas Court of Criminal Appeals

Ogan filed a direct appeal to the Texas Court of Criminal Appeals, raising three points of error. He challenged (1) the sufficiency of the evidence demonstrating his deliberate conduct in causing Officer Boswell's death; (2) the sufficiency of the evidence establishing his future dangerousness; and (3) the effectiveness of his trial counsel at the penalty stage regarding counsel's requested jury instruction on mitigation. The Court of Criminal Appeals affirmed Ogan's conviction and sentence. On December 21, 1993, the United States Supreme Court denied Ogan's writ of certiorari petition.

IV. State Habeas Proceedings and Appeal

On February 4, 1999, the 230th District Court of Harris County, Texas, Judge Belinda Hill, adopted the State's proposed findings of fact, conclusions of law, and order and recommended that the Texas Court of Criminal Appeals deny Ogan's application for habeas relief. The state district court concluded that Ogan had failed to demonstrate ineffective assistance of his trial counsel with regard to counsel's failure to employ a mitigation specialist and with regard to counsel's alleged failure to investigate Ogan's history in an effort to discover mitigating evidence. The court also found that Ogan had failed to demonstrate that his conviction was unlawfully obtained.

On April 28, 1999, the Texas Court of Criminal Appeals denied Ogan's petition for habeas relief. In a brief order, the court stated:

In the instant cause, applicant presents a single allegation challenging the validity of his conviction and resulting sentence. The trial court has entered findings of fact and conclusions of law recommending the relief sought be denied. This court has reviewed the record. The findings and conclusions entered by the trial court are supported by the record and upon such basis the relief sought by the applicant is denied.

Ex Parte Ogan, No. 41,220-01 (Tex.Crim. App. April 28, 1999) (per curiam) (unpublished).

V. Federal Habeas Proceedings

On August 3, 1999, Ogan filed a preliminary petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. On December 30, 1999, Ogan filed a supplemental petition for a writ of habeas corpus. The petition requested relief on the following bases: (1) insufficient evidence to sustain the jury's affirmative answer to the statutory punishment issue on deliberate conduct; (2) insufficient evidence to sustain the jury's affirmative answer to the statutory punishment issue on future dangerousness; (3) ineffective assistance of counsel based on trial counsel's limitation of the jury instruction on mitigation; (4) ineffective assistance of counsel based on trial counsel's failure adequately to develop and present mitigation evidence; and (5) Ogan's purported incompetency to stand trial. The State moved for summary judgment on all of Ogan's claims, and the district court granted that motion.

The district court rejected Ogan's two insufficiency-of-the-evidence claims regarding the special issues on the merits.2 Additionally, the court rejected Ogan's claim of ineffective assistance of counsel regarding the jury instructions on mitigating evidence.

The district court found that Ogan had failed to present his claim of lack of competency to stand trial on direct review, or during the state habeas proceedings and that he had failed to demonstrate cause and prejudice for this failure. Nevertheless, the court considered the claim on the merits and rejected it. The district court also applied the procedural bar to Ogan's claim that his trial counsel was ineffective for failing to recognize the extent of his mental health problems.

The district court rejected Ogan's remaining "miscellaneous" ineffective assistance claims regarding state trial and habeas counsel and the Texas state courts' obligations to provide him with effective counsel. The court based its rejection of these claims on either a procedural bar, the merits, or both. The district court also denied Ogan's request for an evidentiary hearing.

Additionally, the court found that Ogan had failed to make a substantial showing of the denial of a constitutional right, and refused to grant a COA even though Ogan had not yet requested one. Ogan now appeals the district court's rulings.

DISCUSSION

I. Standard of Review

Ogan filed his preliminary habeas petition pursuant to 28 U.S.C. 2254 in the district court on August 3, 1999, and his supplemental petition on December 30, 1999, both after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Thus, AEDPA applies to his § 2254 application. See Lindh v. Murphy, 521 U.S. 320, 335-36, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Nobles v. Johnson, 127 F.3d 409, 412-13 (5th Cir.1997). Under AEDPA, a petitioner seeking habeas relief must obtain a certificate of appealability ("COA"). See 28 U.S.C. 2253(c)(2). A COA may be issued only if the prisoner makes a substantial showing of the denial of a constitutional right. See id.

A petitioner makes this showing if he demonstrates that his petition involves issues which are debatable among reasonable jurists, that a court could resolve the issues differently, or that the issues are adequate enough to deserve encouragement to proceed further. Miller-El v. Johnson, 261 F.3d 445, 449 (5th Cir.2001); see also Lamb v. Johnson, 179 F.3d 352, 356 (5th Cir.1999).

Although the nature of the death penalty is a proper consideration for determining whether the court should issue a COA, its severity alone is not sufficient to warrant the issuance of the certificate. See Lamb, 179 F.3d at 356. Nevertheless, doubts regarding the propriety of issuing the certificate should be resolved in favor of the petitioner. Id. Section 2254(d), as amended by AEDPA, provides that:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ?

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

"Section 2254(d)(1) provides the standard of review for questions of law and mixed questions of law and fact." Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir.2000). The court may grant habeas relief under the "unreasonable application" clause "if the state court identifies the correct governing legal principle but applies it incorrectly, or expands a legal principle to an area outside the scope intended by the Supreme Court." Id. Furthermore, the state court's application "must be `unreasonable' in addition to being merely `incorrect.'" Id. In other words, the appropriate inquiry is "`whether the state court's application of clearly established federal law was objectively unreasonable.'" Id. (quoting Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

With respect to the "contrary to" clause of § 2254(d)(1), "a federal court may grant the writ if the state court has arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides the case differently than the Supreme Court on a set of materially indistinguishable facts." Id. This Court reviews a district court's grant of summary judgment in a habeas proceeding de novo. See Soffar v. Johnson, 237 F.3d 411, 449 (5th Cir.2000). "When reviewing summary judgment on a petition for habeas corpus, consistent with the provisions of 28 U.S.C. 2254(d), we `presume all state court findings of fact to be correct in the absence of clear and convincing evidence.'" Id.; see Caldwell, 226 F.3d at 372.

II. Procedurally Defaulted Claims

In considering Ogan's writ of habeas corpus petition, the district determined that the following claims were procedurally defaulted: (1) Ogan's claim that the state failed to provide competent habeas counsel; (2) his assertion that he was incompetent to stand trial; and (3) Ogan's contention that his trial counsel was ineffective because counsel failed to realize the extent of his mental health problems. The law requires that "a state prisoner seeking to raise claims in a federal petition for habeas corpus ordinarily must first present those claims to the state court and must exhaust state remedies." Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir. 2001) (citing 28 U.S.C. 2254(b)).

Generally, if the petitioner fails to follow these procedures, his claims will be considered procedurally defaulted and will not be regarded as a bases for granting federal habeas relief. Id. at 239 (citing Keeney v. Tamayo-Reyes, 504 U.S. 1, 9, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992)). However, a petitioner can overcome this procedural default, and thus procure federal habeas corpus review of his barred claims, if he can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law. Id. (citing Jones v. Johnson, 171 F.3d 270, 277 (5th Cir. 1999)).

A. Failure to Provide Competent Habeas Counsel

Ogan argued for the first time in his federal habeas petition that the state courts violated his rights to meaningful access to the courts, equal protection, and due process by refusing to remedy its earlier error of appointing him ineffective counsel.3 The district court determined that the claims were procedurally defaulted and could not constitute cause for any other procedurally barred claims.

The district court further noted that there is no underlying right to counsel in state post-conviction review and that there is no cognizable constitutional claim based on the ineffectiveness of state habeas counsel. The district court concluded that to recognize a constitutional claim for ineffective assistance of state habeas counsel would require the retroactive application of a new constitutional principle on collateral review in violation of the Supreme Court's decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).4

Ogan challenges the district court's determination that he could not assert a constitutional claim on the basis of ineffective assistance of state habeas counsel. He asserts that the Texas courts' appointment of incompetent counsel was a violation of his statutory right to competent counsel, as well as a violation of his due process rights under the Fourteenth Amendment. Ogan avers that because Texas has opted to provide post-conviction review of death sentences under article 11.071 of the Texas Code of Criminal Procedure, and has guaranteed the appointment counsel under that statute, it must follow the statutory requirements in accordance with due process.

He concedes that the Sixth Amendment does not guarantee effective assistance of counsel in state post-conviction proceedings. However, he argues that there are other constitutional bases to support his claim that he was entitled to effective assistance of state habeas counsel, namely the First Amendment right to meaningful access to courts and the Fourteenth Amendment due process requirement that state forums and procedures be administered in a reasonably fair and consistent manner.

Ogan's claim that the Texas courts violated his constitutional rights by providing him ineffective habeas counsel is meritless. This Court has repeatedly held, usually in the context of rejecting petitioners' arguments that ineffective habeas counsel is sufficient cause to overcome a procedural bar, that there is no constitutional right to competent habeas counsel. See Jones v. Johnson, 171 F.3d 270, 277 (5th Cir.1999) ("The law is well-established ... that such error committed in a post-conviction application, where there is no constitutional right to counsel, cannot constitute cause."); Callins v. Johnson, 89 F.3d 210, 212 (5th Cir.1996) ("[T]here is no constitutional right to counsel in habeas proceedings."). Accordingly, Ogan's request for a COA on this issue is denied.5

B. Competency to Stand Trial

In the court below, Ogan argued that he was incompetent to stand trial. The district court correctly determined that Ogan failed to raise this argument on direct appeal to the Texas Court of Criminal Appeals or during the state habeas proceedings. Thus, Ogan's claim is procedurally defaulted unless he can demonstrate cause and actual prejudice.

Ogan appears to assert that there was cause for his procedural default on two bases: (1) the ineffectiveness of his state habeas counsel, and (2) the Texas state courts' violation of his constitutional rights by allowing ineffective counsel to represent him. As stated previously, these claims do not constitute cause for purposes of the exception to the procedural default rule. Jones, 171 F.3d at 270. Therefore, Ogan's request for a COA on the issue of his competency to stand trial is also denied.

C. Failure to Realize the Extent of Ogan's Mental Health Problems

In his federal habeas petition, Ogan claimed that his trial counsel was ineffective for failing to recognize the extent of his mental health problems. The district court ruled that this claim was procedurally defaulted. The court noted that although Ogan presented a claim to the state habeas court that pertained to trial counsel's failure to retain a mitigation expert, he did not raise the present claim, which focuses on the effect that his mental health problems may have had on his ability to guide his own defense. Thus, the court determined that the ineffective assistance claim regarding his mental health problems would be dismissed under Texas law as an abuse of writ.6

A review of the record reveals that Ogan did not raise this claim with the Texas courts. Ogan's claim in his state habeas application pertained to trial counsel's failure to have a mitigation expert testify, not counsel's failure to recognize that his participation in his defense was colored by his alleged mental illness. Because Ogan is now proceeding on a different theory than that advanced in the state habeas court, we find this ineffectiveness of habeas counsel claim to be unexhausted. Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir.1998). ("The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court.... A federal court claim must be the `substantial equivalent' of one presented to the state courts if it is to satisfy the `fairly presented' requirement."); see also Dispensa v. Lynaugh, 847 F.2d 211, 217 (5th Cir.1988) (stating that this circuit "has consistently held that a federal habeas petitioner has failed to exhaust his state remedies when he relies on a different legal theory than he did in state court or when he makes the same legal claim to a federal court but supports the claim with factual allegations that he did not make to the state court").

Furthermore, Ogan has wholly failed to demonstrate cause or prejudice for his default. Accordingly, Ogan is not entitled to a COA on this claim.

III. Jury Instructions on Mitigation

Lastly, Ogan argues that his trial counsel was ineffective in failing to request an adequate and accurate jury instruction on mitigating evidence and in failing to object to the "nullification instruction" given by the trial court during the sentencing phase. On direct review, the Texas Court of Criminal Appeals rejected Ogan's claim. The court determined that the aggravating and mitigating evidence did not rise to the level of Penry7 evidence and that the evidence was properly submitted for the jury's consideration. Also, the district court rejected Ogan's claim, finding that the trial court's instruction to the jury met the requirements of Penry.

At the close of the penalty phase of Ogan's trial, the court instructed the jury on mitigating evidence in addition to the Texas special issues. Specifically, the mitigation instruction stated:

You are instructed that when you deliberate on the questions posed in the special issues, you are to consider all relevant mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the State or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character, background, record, emotional instability, intelligence, or circumstances of the crime which you believe could make a death sentence inappropriate in this case.

If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, and thereafter, give effect and consideration to them in assessing the defendant's personal culpability, at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, then a negative finding should be given to that special issue under consideration.

Ogan's counsel requested that the trial judge include the mitigating circumstances of "intelligence" and "emotional instability" in the jury instruction. The judge declined the opportunity to include any more specific instructions on mitigating circumstances.

Recently, on June 4, 2001, the United States Supreme Court held constitutionally inadequate an instruction, in conjunction with the three Texas special issues, nearly identical to the above instruction. See Penry v. Johnson, 532 U.S. 782, 804, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (Penry II).8 Specifically, the Court stated:

The three special issues submitted to the jury were identical to the ones we found constitutionally inadequate as applied in Penry I. Although the supplemental instruction made mention of mitigating evidence, the mechanism it purported to create for the jurors to give effect to that evidence was ineffective and illogical.

The comments of the court and counsel accomplished little by way of clarification. Any realistic assessment of the manner in which the supplemental instruction operated would therefore lead to the same conclusion we reached in Penry I: "[A] reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence." Id. (alteration in original). The jury instructions given in Ogan's case may raise Eighth Amendment concerns under this recent Supreme Court precedent. However, Ogan presents this claim as a Sixth Amendment ineffective-assistance-of-counsel claim, and it must be analyzed accordingly.9

In order to establish ineffective assistance of counsel, Ogan must prove (1) deficient performance, which requires a showing that counsel's representation "fell below an objective standard of reasonableness," and (2) that the deficient performance resulted in actual prejudice. Strickland v. Washington, 466 U.S. 668, 688, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court directs reviewing courts to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052.

As the Court stated "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. "The determination whether the performance of counsel was deficient is based upon the law as it existed at the time of trial." Lucas v. Johnson, 132 F.3d 1069, 1078 (5th Cir.1998) (citing Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)).

When Ogan's trial took place, the Supreme Court had not yet decided whether the supplemental instruction given during Penry's second trial was sufficient to remedy the constitutional infirmities that the Court found existed in his first trial. Ogan's trial counsel did not have the benefit of the Supreme Court's guidance in Penry II, and we have held that "counsel is not required to anticipate subsequent developments in the law." Lucas, 132 F.3d at 1078-79; see also Gray v. Lucas, 677 F.2d 1086, 1096 (5th Cir.1982) (holding that trial counsel's failure to object to the prosecutor's interjection of future dangerousness through expert testimony did not constitute deficient performance where this circuit's ruling discrediting such testimony was decided three years after trial).

We find that counsel's failure to object to the supplemental instruction given at the conclusion of the sentencing phase of Ogan's trial was not objectively unreasonable. In fact, prior to the Supreme Court's ruling in Penry II, we had consistently approved supplemental mitigating evidence instructions similar to the instruction given in this case. See Emery v. Johnson, 139 F.3d 191, 200 (5th Cir.1997); Miller v. Johnson, 200 F.3d 274, 290 (5th Cir.2000).

In Emery, the petitioner was sentenced to death under the same version of article 37.071 of the Texas Code of Criminal Procedure used in Ogan's trial. At the conclusion of the punishment phase, the trial court gave the following instruction:

[Y]our answers to the Special Issues, which determine the punishment to be assessed the defendant by the court, should be reflective of your finding as to the personal moral culpability of the defendant in this case. When you deliberate about the questions posed in the Special Issues, you are to consider any mitigating circumstances supported by the evidence presented in both phases of the trial.

A mitigating circumstance may be any aspect of the defendant's background, character, and record, or circumstances of the crime, which you believe makes a sentence of death inappropriate in this case. If you find that there are any mitigating circumstances, you must decide how much weight they deserve and give them effect when you answer the special issues. If you determine, in consideration of this evidence, that a life sentence, rather than a death sentence, is an appropriate response to the personal moral culpability of the defendant, you are instructed to answer the Special Issue under consideration "No."

Id. at 200. We concluded that

[t]his instruction allowed the jury to consider any appropriate mitigating circumstance,... and required the jury not to sentence [the petitioner] to death if a life sentence was appropriate in light of his moral culpability. The instruction adequately addressed the Court's concerns about Texas's death penalty scheme by giving the jury the ability to consider any appropriate mitigating circumstance.

Id. We would be hard pressed to now find that trial counsel's decision not to object to the supplemental instruction given in Ogan's case, in light of the pre-Penry II rulings of this court, constituted deficient performance under Strickland. Because we find that Ogan has failed to demonstrate deficient performance, he has not met the first prong of the Strickland inquiry. We conclude therefore that Ogan has not substantially shown the denial of his right to effective assistance of counsel. Thus, his application for a COA on this issue is denied.

CONCLUSION

For the reason stated herein, we find that the district court properly refused to grant habeas relief to Ogan.

AFFIRMED.

*****

Special Issue No. 2 asked: "Is there a probability that the defendant, Craig Neil Ogan, would commit criminal acts of violence that would constitute a continuing threat to society?"

Special Issue No. 3 asked: "Was the conduct of the defendant, Craig Neil Ogan, in killing the deceased unreasonable in response to the provocation, if any, by the deceased?"

2 Ogan does not seek a Certificate of Appealability ("COA") on these issues in his petition to this court

3 The trial court appointed habeas counsel, Stephen Taylor ("Taylor"), to represent Ogan. After the trial court recommended to the Texas Court of Criminal Appeals that Ogan's habeas application be denied, and while the habeas application before the Texas Court of Criminal Appeals was pending, Ogan sent a letter to the Court of Criminal Appeals. In the letter, dated April 7, 1999, Ogan requested that the court dismiss Taylor and appoint another attorney to represent him. Ogan also included apro se motion requesting the removal of Taylor from his case and providing examples of Taylor's alleged incompetence. The Court of Criminal Appeals did not act on Ogan's request.

4 InTeague, the Supreme Court declared that new constitutional rules of criminal procedure may not be announced on collateral review. 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The Court clarified that "in general, ... a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government." Id. at 301, 109 S.Ct. 1060.

5 Ogan also argues in depth that, whereas ordinarily the conduct of an attorney is imputed to the client, the conduct of his state habeas counsel should not be imputed to him. He provides several instances in which his state habeas counsel demonstrated incompetency. He notes that habeas counsel did not investigate the possibility of an ineffective-assistance-of-trial counsel claim; that habeas counsel did not obtain and review trial counsel's files or speak to counsel; that habeas counsel was not aware of basic habeas procedural rules; that habeas counsel filed an inadequate writ application, containing only a boilerplate claim that he had raised before and that he "cut and pasted" to Ogan's writ application; that habeas counsel failed to elaborate on the argument in Ogan's writ application; and that the application was only nine pages long. It is apparent that Ogan is attempting to do indirectly what the law precludes him from doing directly, i.e., asserting an ineffective assistance of habeas counsel claim. Since Ogan does not have a constitutional right to effective habeas counsel, we find that this argument must fail

6 Under the Texas Code of Criminal Procedure article 11.071 § 5, a capital defendant may not file multiple applications for review unless he can show that (1) the factual or legal basis of the claim was unavailable on the date of the previous application or the last date for timely filing of an application, or (2) by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror would have answered in the state's favor to one or more of the special issues. Since Ogan's ineffective assistance of counsel claim does not fall within either of these exceptions, any application filed would be dismissed as an abuse of writ. We have held that claims are procedurally barred on federal habeas review if the petitioner would be precluded from exhausting the same claims in state court by the abuse-of-the-writ doctrine of Article 11.071 of the Texas Code of Criminal ProcedureHorsley v. Johnson, 197 F.3d 134, 137 (5th Cir.1999).

7 See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (Penry I).

8 The supplemental instruction given inPenry II provides as follows:

If you find that there are any mitigating circumstance, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant a negative finding should be given to one of the special issues.

Id. at 782-83, 121 S.Ct. 1910.

9 As a side note, we are aware of the Supreme Court's recent decision inAtkins v. Virginia, ___ U.S. ___, 122 S.Ct. 2242, 2243, 153 L.Ed.2d 335 (2002), which announced that executing mentally retarded defendants violates the Eighth Amendment prohibition against "cruel and usual punishment." However, this decision has no impact on our ruling today because Ogan has not alleged that he suffers from mental retardation, nor has he asserted any violations of the Eighth Amendment.

The victim, Houston police officer James C. Boswell.