Murray v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
July 18, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-70042
_______________
WILLIAM A. MURRAY,
Petitioner-Appellant,
VERSUS
NATHANIEL QUARTERMAN,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:01-CV-2089
______________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
William Murray was convicted of capital
murder and sentenced to death. The district
court denied habeas corpus relief but granted
a certificate of appealability. We affirm.
I.
Murray entered the home of ninety-three-
year-old Rena Ratcliff and looked through her
home and bedroom for valuables. Ratcliff
woke up while Murray was in her room and
confronted him. Murray hit and choked Rat-
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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cliff, eventually raping and killing her. He was
convicted by a jury and sentenced to death.
II.
“Under [the Antiterrorism and Effective
Death Penalty Act of 1996], a federal court
may not issue a writ of habeas corpus for a de-
fendant convicted in state court unless the
state court’s adjudication ‘(1) resulted in a de-
cision that was contrary to, or involved an un-
reasonable 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 evi-
dence presented in the State court proceed-
ing.’” Parr v. Quarterman, 472 F.3d 245, 252
(5th Cir. 2006) (quoting 28 U.S.C. § 2254(d)-
(1)-(2)). “[W]e review the district court’s
findings of facts for clear error and its conclu-
sions of law de novo, applying the same stan-
dards to the state court’s decision as did the
district court.” Busby v. Dretke, 359 F.3d
708, 713 (5th Cir. 2004) (citing Martinez v.
Johnson, 255 F.3d 229, 237 (5th Cir. 2001)).
“A decision is contrary to clearly estab-
lished Federal law ‘if the state court arrives at
a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the
state court decides a case differently than [the]
Court has on a set of materially indistinguish-
able facts.’” Hill v. Johnson, 210 F.3d 481,
485 (5th Cir. 2000) (quoting Williams v. Tay-
lor, 529 U.S. 362, 413 (2000)). “Factual de-
terminations by state courts are presumed cor-
rect absent clear and convincing evidence to
the contrary.” Miller-El v. Cockrell, 537 U.S.
322, 324 (2003) (citing 28 U.S.C. § 2254-
(e)(1)).
A.
Murray first asserts that the state trial
court’s decision not to require a psychological
examination to determine whether Murraywas
competent to waive his appeal was objectively
unreasonable. We disagree.
The trial court had a considerable amount
of evidence relating to Murray’s competence.
Murray’s counsel stated Murray was compe-
tent to waive his appeal; Murray testified at
the waiver hearing that he was competent to
waive his appeal; one expert told the court
that, based on an informal evaluation, he had
no reason to suspect Murray was incompetent,
though he was not sure, because he had not
been asked to do a formal evaluation; and one
expert provided a pretrial report stating Mur-
ray was competent to stand trial five months
before the waiver hearing.
Murray claims his own testimony should
have alerted the trial court to the need for an
examination. In his testimony, he claimed that
his decision was based on emotion, not ratio-
nal reasoning, as shown by the fact he gave
unfounded emotional reasons for his waiver:
He said he wanted to “get it over” for the vic-
tim’s family’s sake, even though he knew it
was a “mistake.” Moreover, he claims that his
major depression and suicidal ideation should
have caused the court to order a psychological
examination.
In Mata v. Johnson, 210 F.3d 324 (5th Cir.
2000), we analyzed when a federal district
court must obtain a psychological examination
for a defendant waiving his right to continue
habeas appeals. In that case, the district court
did not require an examination, and we exam-
ined whether the evidence raised a bona fide
issue of competence. Id. at 330. The record
contained evidence that raised a bona fide

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question of competence, because there was ev-
idence that the defendant suffered from an or-
ganic brain disorder, had made numerous sui-
cide attempts, and had a delusional disorder.
Id. at 332. The district court erred by relying
on an expert report that was twelve years old.
Id. Also, in that case the defendant did not ap-
pear before the court for the court to observe
his behavior personally. Id. at 333.
Having carefully reviewed Murray’s brief
and supporting documents, we conclude that
the state trial court did not base its decision on
an unreasonable determination of the facts in
failing to require a psychological exam. The
evidence in the record did not raise a question
of Murray’s competence. His depression and
suicidalideation are unlike the repeated suicide
attempts and documented delusional disorder
in Mata. The five-month-old expert report
stating Murray was competent to stand trial is
quite different from the twelve-year-old report
in Mata; nothing indicates the report in this
case was insufficiently current. Finally, the
state court examined Murray, personally
observing his behavior, and concluded he was
competent. The federal district court did not
err in finding that the state court’s failure to
require a psychological exam was not unrea-
sonable.
B.
Murray urges that the Texas Court of Crim-
inal Appeals (“TCCA”) denied him procedural
due process because it used a postcard to deny
his motion for rehearing of its affirmance of his
conviction. He also asserts that he should
have been able to withdraw his waiver of his
right to appeal because his motion for rehear-
ing was made only a few months after he had
requested permission to waive his right to
appeal.
Murray filed a motion that stated that he
had informed his counsel that he wanted to
waive his right to appeal. Three months later,
the TCCA affirmed his sentence, noting he had
waived his right to appeal. About two weeks
later, Murray moved for rehearing, stating he
had changed his mind about waiving. The
TCCA denied the motion for rehearing with a
postcard that noted that three of the nine
members of the court dissented from the
denial.
Murray claims that the TCCA’s use of a
postcard to deny his motion for rehearing was
“the essence of arbitrary action” and that the
refusal to permit him to withdraw his waiver
was an abuse of discretion that affected “the
fundamental fairness of the trial.” Yet, Murray
has not shown that the TCCA’s procedure was
contrary to any clearly established federal law
as determined by the Supreme Court. He
provides no law stating that defendants have a
right to a rehearing or that they have a right to
have their rehearing denied with a written
opinion that is not on a postcard. The Su-
preme Court has “defined the category of in-
fractions that violate ‘fundamental fairness’
very narrowly,” Dowling v. United States,
493 U.S. 342, 352 (1990), and the procedure
followed here does not fit into that narrow
category, because it does not violate “those
fundamental conceptions of justice which lie at
the base of our civil and political institutions,
and which define the community’s sense of fair
play and decency.” Id. at 353 (internal quota-
tions omitted).
C.
Murray contends that the federal district
court erred in denying his claim that he was
denied effective assistance of counsel at trial
and on appeal. Murray admits that he did not
exhaust his state remedies, so he is not entitled

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to relief under § 2254(b)(1)(A). But, he
claims that his failure to exhaust his claims
does not limit relief available under § 2254(b)-
(1)(B).1
To qualify for an exception under § 2254-
(b)(1)(b), a prisoners must “‘demonstrate
cause for the default and actual prejudice as a
result of the alleged violation of federal law, or
demonstrate that failure to consider the claims
will result in a fundamental miscarriage of
justice.’”2 “To prove ‘cause’ [Murray] must
establish that some ‘external force’ impeded
the defense’s efforts to comply with the proce-
dural rule.” Id. at 756 (citing Coleman, 501
U.S. at 753). “To meet the ‘miscarriage of
justice’ test, [Murray] needed to supplement
his constitutional claim with a colorable show-
ing of factual innocence, i.e., ‘a fair probability
that, in light of all the evidence, including that
. . . evidence tenably claimed to have been
wrongly excluded or to have become available
only after the trial, the trier of the facts would
have entertained a reasonable doubt of his
guilt.’” Id. (quoting Sawyer v. Whitley, 505
U.S. 333, 339 & n.5 (1992) (citations and
quotations omitted)). Murray has not met
either of these requirements, and we cannot
discern any argument in his brief that appears
designed to do so. Because he has not estab-
lished that he qualifies for an exception to the
exhaustion requirement, he is not entitled to
relief on the basis of ineffective assistance.
D.
Murray posits that Texas’s method of se-
lecting who is prosecuted for the death penalty
is objectively unreasonable under the Four-
teenth Amendment because it gives prosecu-
tors excessive discretion and permits similarly
situated criminals to be treated differently. As
pointed out in the proceedings in the district
court, however, the Supreme Court has re-
jected the foundation for this claim. See
Gregg v. Georgia, 428 U.S. 153, 199 (1976).
Murray’s assertion is meritless.3
1 28 U.S.C. § 2254(b)(1) states:
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
unless it appears thatSS
(A) the applicant has exhausted the remedies
available in the courts of the State ; or
(B)(i) there is an absence of available State
corrective process; or
(ii) circumstances exist that render such pro-
cess ineffective to protect the rights of the
applicant.
2 Bagwell v. Dretke, 372 F.3d 748, 755 (5th
Cir. 2004) (quoting Coleman v. Thompson, 501
U.S. 722, 750 (1991)). Murray argues that we
should abandon this requirement based on the stat-
utory language and public policy reasons. Because
we are bound by our past decisions, such as
Bagwell, we do not abandon that requirement
today.
3 In Gregg, the Court characterized the type of
argument Murray asserts here:
The petitioner’s argument is nothing more than
a veiled contention that Furman indirectly out-
lawed capital punishment by placing totally
unrealistic conditions on its use. In order to re-
pair the alleged defects pointed to by the pe-
titioner, it would be necessary to require that
prosecuting authorities charge a capital offense
whenever arguably there had been a capital
murder and that they refuse to plea bargain with
the defendant. If a jury refused to convict even
though the evidence supported the charge, its
verdict would have to be reversed and a verdict
(continued...)

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E.
Murray avers that the state court’s failure
to inform jurors on the effect of the parole law
violated equal protection and due process.
Our precedent, however, precludes his argu-
ment, because we have consistently held that a
defendant does not have a due process right to
present parole eligibility information to the
jury. Thacker v. Dretke, 396 F.3d 607, 617
(5th Cir. 2005).4 Regarding his equal protec-
tion argument, Murray presents no reason that
the state court’s “adjudication resulted in a de-
cision that was contrary to . . . clearly estab-
lished Federal law, as determined by the Su-
preme Court,” so he cannot prevail on this
claim.
AFFIRMED.
3(...continued)
of guilty entered or a new trial ordered, since
the discretionary act of jury nullification would
not be permitted. Finally, acts of executive
clemency would have to be prohibited. Such a
system, of course, would be totally alien to our
notions of criminal justice.
Gregg, 428 U.S. at 199 n.50.
4 Simmons v. South Carolina is inapplicable.
“Simmons requires that a jury be informed about a
defendant's parole ineligibility only when (1) the
state argues that a defendant represents a future
danger to society, and (2) the defendant is legally
ineligible for parole.” Miller v. Johnson, 200 F.3d
274, 290 (5th Cir. 2000). Because Murray could
be paroled after forty years, he is not legally ineli-
gible for parole.

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