                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                                                                      F I L E D
                                                  In the                                July 18, 2007
                       United States Court of Appeals                             Charles R. Fulbruge III
                                      for the Fifth Circuit                               Clerk
                                            _______________

                                              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,                           William Murray was convicted of capital
  Circuit Judges.                                      murder and sentenced to death. The district
                                                       court denied habeas corpus relief but granted
JERRY E. SMITH, Circuit Judge:*                        a certificate of appealability. We affirm.

                                                                             I.
                                                          Murray entered the home of ninety-three-
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-    year-old Rena Ratcliff and looked through her
termined that this opinion should not be published     home and bedroom for valuables. Ratcliff
and is not precedent except under the limited cir-     woke up while Murray was in her room and
cumstances set forth in 5TH CIR. R. 47.5.4.            confronted him. Murray hit and choked Rat-
cliff, eventually raping and killing her. He was                               A.
convicted by a jury and sentenced to death.                Murray first asserts that the state trial
                                                        court’s decision not to require a psychological
                        II.                             examination to determine whether Murray was
    “Under [the Antiterrorism and Effective             competent to waive his appeal was objectively
Death Penalty Act of 1996], a federal court             unreasonable. We disagree.
may not issue a writ of habeas corpus for a de-
fendant convicted in state court unless the                The trial court had a considerable amount
state court’s adjudication ‘(1) resulted in a de-       of evidence relating to Murray’s competence.
cision that was contrary to, or involved an un-         Murray’s counsel stated Murray was compe-
reasonable application of, clearly established          tent to waive his appeal; Murray testified at
Federal law, as determined by the Supreme               the waiver hearing that he was competent to
Court of the United States; or (2) resulted in a        waive his appeal; one expert told the court
decision that was based on an unreasonable              that, based on an informal evaluation, he had
determination of the facts in light of the evi-         no reason to suspect Murray was incompetent,
dence presented in the State court proceed-             though he was not sure, because he had not
ing.’” Parr v. Quarterman, 472 F.3d 245, 252            been asked to do a formal evaluation; and one
(5th Cir. 2006) (quoting 28 U.S.C. § 2254(d)-           expert provided a pretrial report stating Mur-
(1)-(2)). “[W]e review the district court’s             ray was competent to stand trial five months
findings of facts for clear error and its conclu-       before the waiver hearing.
sions of law de novo, applying the same stan-
dards to the state court’s decision as did the             Murray claims his own testimony should
district court.” Busby v. Dretke, 359 F.3d              have alerted the trial court to the need for an
708, 713 (5th Cir. 2004) (citing Martinez v.            examination. In his testimony, he claimed that
Johnson, 255 F.3d 229, 237 (5th Cir. 2001)).            his decision was based on emotion, not ratio-
                                                        nal reasoning, as shown by the fact he gave
                                                        unfounded emotional reasons for his waiver:
    “A decision is contrary to clearly estab-           He said he wanted to “get it over” for the vic-
lished Federal law ‘if the state court arrives at       tim’s family’s sake, even though he knew it
a conclusion opposite to that reached by [the           was a “mistake.” Moreover, he claims that his
Supreme Court] on a question of law or if the           major depression and suicidal ideation should
state court decides a case differently than [the]       have caused the court to order a psychological
Court has on a set of materially indistinguish-         examination.
able facts.’” Hill v. Johnson, 210 F.3d 481,
485 (5th Cir. 2000) (quoting Williams v. Tay-              In Mata v. Johnson, 210 F.3d 324 (5th Cir.
lor, 529 U.S. 362, 413 (2000)). “Factual de-            2000), we analyzed when a federal district
terminations by state courts are presumed cor-          court must obtain a psychological examination
rect absent clear and convincing evidence to            for a defendant waiving his right to continue
the contrary.” Miller-El v. Cockrell, 537 U.S.          habeas appeals. In that case, the district court
322, 324 (2003) (citing 28 U.S.C. § 2254-               did not require an examination, and we exam-
(e)(1)).                                                ined whether the evidence raised a bona fide
                                                        issue of competence. Id. at 330. The record
                                                        contained evidence that raised a bona fide


                                                    2
question of competence, because there was ev-               Murray filed a motion that stated that he
idence that the defendant suffered from an or-           had informed his counsel that he wanted to
ganic brain disorder, had made numerous sui-             waive his right to appeal. Three months later,
cide attempts, and had a delusional disorder.            the TCCA affirmed his sentence, noting he had
Id. at 332. The district court erred by relying          waived his right to appeal. About two weeks
on an expert report that was twelve years old.           later, Murray moved for rehearing, stating he
Id. Also, in that case the defendant did not ap-         had changed his mind about waiving. The
pear before the court for the court to observe           TCCA denied the motion for rehearing with a
his behavior personally. Id. at 333.                     postcard that noted that three of the nine
                                                         members of the court dissented from the
    Having carefully reviewed Murray’s brief             denial.
and supporting documents, we conclude that
the state trial court did not base its decision on           Murray claims that the TCCA’s use of a
an unreasonable determination of the facts in            postcard to deny his motion for rehearing was
failing to require a psychological exam. The             “the essence of arbitrary action” and that the
evidence in the record did not raise a question          refusal to permit him to withdraw his waiver
of Murray’s competence. His depression and               was an abuse of discretion that affected “the
suicidal ideation are unlike the repeated suicide        fundamental fairness of the trial.” Yet, Murray
attempts and documented delusional disorder              has not shown that the TCCA’s procedure was
in Mata. The five-month-old expert report                contrary to any clearly established federal law
stating Murray was competent to stand trial is           as determined by the Supreme Court. He
quite different from the twelve-year-old report          provides no law stating that defendants have a
in Mata; nothing indicates the report in this            right to a rehearing or that they have a right to
case was insufficiently current. Finally, the            have their rehearing denied with a written
state court examined Murray, personally                  opinion that is not on a postcard. The Su-
observing his behavior, and concluded he was             preme Court has “defined the category of in-
competent. The federal district court did not            fractions that violate ‘fundamental fairness’
err in finding that the state court’s failure to         very narrowly,” Dowling v. United States,
require a psychological exam was not unrea-              493 U.S. 342, 352 (1990), and the procedure
sonable.                                                 followed here does not fit into that narrow
                                                         category, because it does not violate “those
                       B.                                fundamental conceptions of justice which lie at
    Murray urges that the Texas Court of Crim-           the base of our civil and political institutions,
inal Appeals (“TCCA”) denied him procedural              and which define the community’s sense of fair
due process because it used a postcard to deny           play and decency.” Id. at 353 (internal quota-
his motion for rehearing of its affirmance of his        tions omitted).
conviction. He also asserts that he should
have been able to withdraw his waiver of his                                   C.
right to appeal because his motion for rehear-              Murray contends that the federal district
ing was made only a few months after he had              court erred in denying his claim that he was
requested permission to waive his right to               denied effective assistance of counsel at trial
appeal.                                                  and on appeal. Murray admits that he did not
                                                         exhaust his state remedies, so he is not entitled


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

                                                      4
                       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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