                  REVISED - September 18, 2000

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                           No. 00-10934




JEFFREY HENRY CALDWELL,
                                            Petitioner-Appellant,

                               versus

GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
                                            Respondent-Appellee.




    Application for Certificate of Appealability and Stay of
         Execution from the United States District Court
       For the Northern District of Texas, Dallas Division

                          August 30, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     Today we examine Texas’s response to the decision of the

Supreme Court1 that the Constitution forbids the execution of an

insane person. Securing this “right” turns the focus from validity

of conviction and sentence with its search for historical fact to

an inquiry into the present mental state of an accused, more

precisely his present mental state, and at a point of time in the


     1
      Ford v. Wainwright, 477 U.S. 399 (1986).
near future. This elevation to constitutional status of common law

and statutory rules and resulting shift in focus has prompted

responses    by   the   state   and   a       procrustean   enterprise   of   the

judiciary to fit Ford issues within our procedural apparatus for

post-trial review of conviction and sentence.2                That fit is the

backdrop to today’s decision.         We conclude that Texas has afforded

the petitioner all process constitutionally due.                 We refuse to

issue a certificate of appealability or to stay the scheduled

execution.

                                          I

     Jeffrey Henry Caldwell is scheduled to be executed on August

30, 2000, by the State of Texas for the crime of capital murder.

The Texas Court of Criminal Appeals affirmed his conviction and

sentence in 1991. Caldwell v. State, 818 S.W.2d 790 (TEX. CRIM. APP.

1991), cert. denied, 112 S.Ct. 1684 (1992).             Caldwell first sought

federal habeas relief, but his petition was dismissed without

prejudice for failure to exhaust state remedies by the Northern

District of Texas on September 9, 1993.                Caldwell then filed a

post-conviction application in the state trial court in November of

1993.    That application was denied in 1994 by Judge Gerry Meier of

the 291st District Court in Dallas County, Texas.               A second post-

conviction application was filed with Judge Meier on March 22,

1995.    She denied relief on March 30, 1995.               The Texas Court of

     2
      See e.g., Stewart v . Martinez-Villareal, 118 S. Ct. 1618
(1998), and Art. 46.04, TEX. CODE OF CRIM. PROC.

                                          2
Criminal Appeals affirmed that denial of relief on March 31, 1995.

                                         II

       On May 30, 1995, Caldwell filed a petition for writ of habeas

corpus in the Northern District of Texas, asserting numerous

claims.      The district court denied all relief in January of 1999,

declining Caldwell’s motion for leave to amend the petition to

include a claim under Ford v. Wainwright.               On February 18, 1999, we

granted a certificate of probable cause to appeal but affirmed the

denial of relief on all claims and also affirmed the refusal of

leave to amend.         We concluded that Caldwell’s Ford claim was

premature, pointing out that the Texas legislature had recently

provided a procedure for testing the competency of a person to be

executed     under    Article    46.04     of    the   Texas     Code    of   Criminal

Procedure, effective September 1, 1999.                 On April 11, 1999, the

trial court scheduled Caldwell’s execution for August 30, 2000.

The Supreme Court denied certiorari and a stay of execution on

August 23, 2000.3

                                         III

       On June 28, 2000, the State of Texas filed with Judge Meier a

“Request      for    Psychiatric    Examinations           and   Determination      of

Competency,” pursuant to the Texas Code of Criminal Procedure,

Article 46.04.

       The   State’s    motion     cited       occasions    in   which    Caldwell’s

   3
    Justice Stevens and Justice Ginsburg would have granted the
stay for execution.

                                           3
competency had surfaced over the course of this prosecution.                     It

observed that, while Caldwell did not offer a defense during the

punishment    phase,    the    State    had    called    a    psychiatrist     who,

responding to a hypothetical question, expressed the opinion that

Caldwell was a sociopath. The witness explained that Caldwell knew

right from wrong but chose to do wrong.

     The State also pointed to the affidavit of Dr. Phillip J.

Murphy, obtained in connection with the first application for writ

of habeas corpus filed in the state trial court in 1993.                     In the

affidavit    Dr.    Murphy    swore    that   his   preliminary      examination

demonstrated serious mental illness that could only be conclusively

determined through further examination and testing; that he was

unable to do so without funding.

     Dr. Murphy expressed the view that “the defendant’s reality

level was best described as psychotic”; that his Bender-Gestalt

test indicated brain damage; that while he needed additional tests,

execution may not be appropriate for a person with these disorders.

     The    State   pointed    out     that   Caldwell   in    his   first    State

petition had claimed that his counsel was ineffective for not

investigating and offering evidence of his mental problems; that

the trial court should have instructed the jury regarding a severe

mental disorder.     The State observed that the defendant raised the

same issues in his second federal writ and that the district court,

affirmed by this court, had rejected the claims of ineffective

assistance of counsel.

                                         4
      In its motion of June 28 the State took the position that the

prosecution did “not believe that the defendant is suffering from

any mental disorders rendering him incompetent to be executed,” but

that “as a precautionary measure,” the district court ought to

appoint two qualified mental health professionals to evaluate his

mental competence.   Without opposition from Caldwell, the district

court granted the motion on August 9, 2000.       It appointed two

psychiatrists to examine Caldwell.     Both reported back to the

district court that Caldwell did not cooperate and refused to

confer with them.4

                                 IV

      Caldwell filed an application for state writ of habeas corpus

on August 16, claiming he is not competent and requesting funding

to obtain mental health experts of his own choosing.   As summarized

in the State’s response:

      In raising his claim of incompetency to be executed in
      the state courts, Caldwell relied upon a 1992
      psychological evaluation performed by Philip Murphy and
      a 1998 affidavit of one of his attorneys, Peter
      MacMillan. Without addressing the issue of competency to
      be executed (or to stand trial), Dr. Murphy was of the
      opinion that Caldwell possessed a low I.Q., suffers from
      organic brain damage, and presents a “serious thought

  4
    Judge Meier appointed Dr. James Grigson and Dr. Michael Pitman
to evaluate Caldwell’s competency to be executed. Caldwell asserts
that he objected to the failure to appoint an “independent”
professional and Dr. Grigson as being well known for his bias. We
accept counsel’s unchallenged assertion that an objection was made,
although we have been pointed to nothing in the record supporting
it.



                                 5
     disorder of either a paranoid or schizophrenic nature.”
     MacMillan averred that correspondence he had received
     from Caldwell indicated to him that Caldwell failed to
     appreciate the factual basis that led to his conviction
     and the severity of the punishment for his crime.

     On August 18, Judge Meier filed a “notation of subsequent writ

application,” concluding that:

     This Court further finds that to the extent applicant’s
     current subsequent writ application could be construed as
     a motion pursuant to Article 46.06 of the Texas Code of
     Criminal Procedure, the pleadings fail to make a
     substantial showing of Caldwell’s incompetency to be
     executed as required by Article 46.04(f).

She then directed that the Clerk of the Court forward the relevant

papers to the Texas Court of Criminal Appeals.

                                 V

     Caldwell’s counsel then filed with the Texas Court of Criminal

Appeals his “subsequent application for writ of habeas corpus,

motion for appointment and compensation of counsel, and motion for

funding for mental health experts.”   On August 28, a divided Texas

Court of Criminal Appeals dismissed by written opinion Caldwell’s

application.

     The court treated Caldwell’s motion as an effort to invoke the

procedures of Article 46.04.     It first noted that Article 46.04

made no provision for the appointment of counsel, holding that

while the “trial court could appoint counsel in any given case,” it

did not abuse its discretion here.     The court explained it had

neither the authority to remand for a hearing nor authority to

grant funds to hire mental health experts to assist in the hearing.


                                 6
By the Texas Court of Criminal Appeal’s reading, it had authority

under Art. 46.04 only to review a finding by the trial court that

a defendant is incompetent; it had no jurisdiction to review a

“finding of a substantial showing of incompetence or, after a

hearing takes place, the finding that the defendant is competent to

be executed.”

     Caldwell then filed a petition for writ of habeas corpus and

stay of execution on August 29, 2000, with the United States

District Court, Northern District of Texas.            The return to federal

court relies upon the Supreme Court’s decision in Stewart v.

Martinez-Villareal, 118 S.Ct. 1618 (1998) that “respondent’s Ford

claims here –        previously dismissed as premature – should be

treated in the same manner as the claim of a petitioner who returns

to a federal habeas court after exhausting state remedies,”                 118

S.Ct.    at   1622   -   specifically    that   his   Ford   claim   is   not   a

successive petition.        Texas concedes that the present petition is

not successive.5

                                        VI

     Caldwell’s federal petition combines several contentions in a

single narrative.        As best we can discern, read most favorably to

Caldwell, he attacks Article 46.04 on six grounds.               He contends

that, as construed by the Texas Court of Criminal Appeals, there is


     5
      Given the late hour and our disposition of this case, we do
not here question this concession and will assume that the petition
is not successive.

                                        7
no right of appeal from a decision by a state trial court finding

a petitioner to be competent for execution.               Second, that the

statute both facially and as applied denies Caldwell his right “to

be evaluated by mental health professionals of his own choosing.”

Third and relatedly, he contends that since Caldwell is indigent,

he would be unable to hire such assistance and hence he is entitled

to state funding for that purpose.         Fourth, that Texas denied him

the assistance of medical experts in preparing for his competency

hearing and offering both expert advice and testing.             Fifth, he

broadly   contends   that   since    his   Ford   claim   has   never   been

determined on the merits by any court, he is entitled to a hearing

in federal court.    Finally, Caldwell appears to question the state

trial court’s holding that he did not make a substantial showing of

competency.

                                    VII

     The United States District Court for the Northern District of

Texas denied a stay of execution and application for certificate of

appealability on August 30, 2000.          Judge Sanders concluded that

petitioner had been dilatory in pursuing his Ford claims.           He also

concluded that the merits of the petition did not support a stay,

specifically that the federal court was required to defer to the

factual finding of the state trial court.          Finally, the district

court did not reach the constitutional claims but questioned “the

lack of meaningful judicial review in § 46.04(k).

                                    VIII

                                     8
                                         1

      A state prisoner may not obtain relief 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.

28 U.S.C. § 2254(d) (2000).              Section 2254(d)(1) provides the

standard of review for questions of law and mixed questions of law

and fact.         Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000).

      Under the “unreasonable application” clause, the court may

grant the writ 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.      See id. at 1521, 1523.       The state court’s application of

the   law    must    be    “unreasonable”    in   addition   to   being   merely

“incorrect.”        See id. at 1522.     “Stated simply, a federal habeas

court making the ‘unreasonable application’ inquiry should ask

whether     the    state    court’s   application   of    clearly   established

federal law was objectively unreasonable.”               See id. at 1521.

      Under 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

                                         9
question of law, or if the state court decides a case differently

than the Supreme Court on a set of materially indistinguishable

facts. See id. at 1523.

     On review of a state prisoner’s federal habeas petition, “a

determination of a factual issue made by a State court shall be

presumed to be correct,” and the petitioner “shall have the burden

of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1). A certificate of appealability

may issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.”        28 U.S.C. § 2253(b)(2).

“When the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional

claim, a COA should issue when the prisoner shows, at least, that

jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.”          Slack v. McDaniel,

120 S. Ct. 1595, 1604 (2000).

                                    2

     Caldwell   points   us   to   no   authority   in   support   of   his

contention that he is entitled to appellate review in the state

court of the trial court decision that he is competent.        We know of

no such authority. The constitutional footing for rights of appeal

from criminal conviction has enjoyed an uneven history, initially

resting on principles of equal protection.          Of course, since the

                                   10
absence of appellate review is across the board, no petitioner can

appeal; there is no footing for an equal-protection-based right of

access for indigents.          To the extent a right of appeal is footed

directly upon the assurance of a fair process in determining guilt

and sentence, we see no principled basis for its extension to a

determination by the state judiciary of the issue of competence for

execution.     Regardless, we lack the authority to do so in a habeas

case.

     Caldwell points to Ake v. Oklahoma, 470 U.S. 68 (1985), in

support of his contention that he is entitled to medical assistance

of his own choosing.           The extension of Ake principles to a Ford

hearing on competency to be executed aside, Ake itself disavowed

any such right.      Id. at 83.

     His assertion that he is entitled here to Ake’s assured access

to medical assistance in evaluating and preparing a defense has

more purchase, but ultimately is equally without merit.                     Ake v.

Oklahoma held that an indigent criminal defendant who demonstrates

“that his sanity at the time of the offense is to be a significant

factor   at    trial”    has    a   due    process     right   to   “a    competent

psychiatrist who will conduct an appropriate examination and assist

in evaluation, preparation, and presentation of the defense.”                   Id.

This right extends to the sentencing phase of trial.                It did not by

its terms or reasoning extend to a Ford type hearing.                    Safeguards

rooted in the Constitution’s protection of a fair and accurate

trial    are   not      necessarily       implicated     by    Eighth    Amendment

                                          11
prohibitions    of       cruel   and    unusual    punishment.         In   Ford   v.

Wainwright, Justice Powell emphasized this distinction: “[T]he only

question raised is not whether, but when, his execution may take

place. This question is important, but it is not comparable to the

antecedent question whether petitioner should be executed at all.

It   follows   that       this   Court’s       decisions   imposing     heightened

procedural     requirements        on     capital     trials     and    sentencing

proceedings do not apply in this context.”                     477 U.S. at 425

(citations and footnote omitted).

      Under 46.04 Judge Meier was not required to appoint medical

experts    absent    a    substantial     showing    by    Caldwell,    a   showing

Caldwell conceded he could not make assertedly for want of funds to

engage medical assistance.              Judge Meier, however, proceeded to

appoint two experts. Caldwell did not object to the appointment of

experts.    Rather, he objected to the fact that Dr. Grigson was one

of the two experts chosen.             Then Caldwell refused to allow either

of the two to examine him.

                                           3

      All else aside, there are overarching flaws in Caldwell’s

request for stay of execution.            Caldwell is in no position to claim

that Texas has prejudiced his ability to trigger the appointment

under Art. 46.04 of two medical experts to examine his competency.6

      6
      To the extent Caldwell challenges the state trial judge’s
holding that he had not made a substantial showing of incompetence,
the challenge is without merit – even if we were not to accord that
finding the deference it is due.

                                          12
That was done.    Nor does he point to any impediment imposed by the

state to an adversarial test of the experts’ reports.   Ultimately,

Caldwell’s claim shrinks to claims that he was entitled to an

expert of his choice or an expert to assist in any challenge of the

opinion of the experts.   This is no more and no less than a request

that Ake be extended to Ford proceedings.   In any event, such a new

rule is not available in his federal habeas challenge to a state

decision.   Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989); 28

U.S.C. § 2254(d)(1).

     We are persuaded that Art. 46.04 is valid, both facially and

as applied. We reject a certificate of appealability and refuse to

stay execution.




                                  13
