John W. FEARANCE
Number of victims: 1
Date of murder:
Date of arrest:
Date of birth:
Victim profile: Larry Faircloth
Method of murder: Stabbing
Location: Dallas County, Texas, USA
by lethal injection in Texas on June 20,
June 20, 1995
I would like to say that I have no
animosity toward anyone. I made a mistake 18 years ago Ė I
lost control of my mind but I didnít mean to hurt anyone. I
have no hate toward humanity. I hope He will forgive me for
what I done. I didnít mean to.
John Fearance, Texas (1995)
A claim that John Fearance was incompetent
for execution was unsuccessful. There was evidence that he
suffered from paranoid schizophrenia. His claim that his rights
were violated when he was forcibly medicated to render him
competent for execution was rejected on the basis that the claim
should have been raised earlier.
Texas Killer Of a Neighbor Is Put to Death
The New York Times
June 21, 1995
A man who
said that his wife's casserole led him to stab a neighbor to
death was executed by injection early today.
The condemned man, John Fearance Jr., 40,
ended a brief, rambling final statement by saying he was ready
"I would like to say that I have no animosity
toward anyone," Mr. Fearance said. "I made a mistake 18 years
ago. I feel like I'm not responsible for what I done because I
had a bad psychotic break. I lost control. I lost my life.
"I don't have any hate toward humanity. I
didn't mean to and I'm ready to go meet my Maker."
He said "hail Mary" through a gasp before
Mr. Fearance was sentenced to die for killing
Larry Faircloth in Dallas on Dec. 23, 1977.
Mr. Fearance said he returned home from his
job at a car repair shop and found that his wife had baked him a
casserole with meat. He said he liked his meat separate.
In an interview on June 7 he said he argued
with his wife and then: "I just lost control of my mind. I just
He broke into at least two houses in his
neighborhood, including Mr. Faircloth's. Mr. Faircloth's wife,
Betty, identified Mr. Fearance as the man who stabbed her
husband 19 times.
Mr. Fearance said he was remorseful but
should not have been sentenced to death. "They should have tried
me for temporary insanity," he said.
Mr. Fearance's criminal record dates to 1972
when he received a two-year prison sentence for rape and theft.
He served eight months. In 1975 he was sentenced to five years
in prison for theft but was released after serving slightly more
than a year.
56 F.3d 633
John FEARANCE, Jr., Petitioner-Appellant,
Wayne SCOTT, Director Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
United States Court of Appeals,
June 18, 1995.
Appeal from the United
States District Court for the Northern District of Texas.
On Application for Certificate of
Probable Cause and Motion for Stay of Execution.
Before JONES, DUHE and
WIENER, Circuit Judges.
EDITH H. JONES, Circuit
Appellant Fearance has
been tried and sentenced to death twice for stabbing Larry
Faircloth nineteen times and causing him to bleed to death
in his own bedroom, during Fearance's aborted burglary. This
court rejected Fearance's first federal habeas petition and
denied a certificate of probable cause to appeal only three
months ago. Following his third collateral trip through the
state courts, Fearance filed for Sec. 2254 habeas relief in
the federal district court for the second time. Fearance has
now reemerged before this court, three working days before
his scheduled execution, again searching for a stay of
execution and application for certificate of probable cause
to appeal. Concluding that he has not alleged grounds for
relief that are reasonably debatable among jurists, Barefoot
v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3395 n.
4, 77 L.Ed.2d 1090 (1983), because his claims are clearly
foreclosed, we must deny CPC and decline to issue a last-minute
stay of execution.
asserts two new grounds for relief that were not
conclusively rejected by this court in Fearance v. Scott,
No. 94-10686, 51 F.3d 1041 (5th Cir. March 21, 1995) (Fearance
I ). First, he argues that the State of Texas would violate
the Eighth Amendment's prohibition of cruel and unusual
punishment by executing him after "forc[ing] him to endure
over a decade on death row." This is a claim that could and
should have been asserted in his first federal petition.
Second, he raises a series of challenges related to his
mental competency for execution. We hold that Fearance's
previous litigation strategy has barred most of these claims
from review on the merits, and that he is presently mentally
competent to be executed.
I. Unconstitutional Delay
In his third state habeas
petition filed May 25, 1995, Fearance first raised an Eighth
Amendment based challenge to the "extended" delay of Texas
in executing his sentence of death. He asserts that his
claim that Texas has forfeited its right to execute him
because of the "inordinate delay" between his first trial in
1978 and final issuance of the Court of Criminal Appeals
mandate in July, 1989 derives from the memorandum opinion
issued by Justice Stevens in the Supreme Court's denial of
certiorari in Lackey v. Texas, --- U.S. ----, 115 S.Ct.
1421, 131 L.Ed.2d 304 (1995). He further buttresses the
support for this proposition with additional historical
research and by extrapolating from the Supreme Court's order
granting a stay and vacating this court's opinion in Lackey
v. Scott, 52 F.3d 98 (5th Cir.1995). See Lackey v. Scott,
--- U.S. ----, 115 S.Ct. 1818, 131 L.Ed.2d 741 (1995).
Fearance first petitioned
the federal courts for relief in 1992. In that proceeding he
did not assert a claim that the Eighth Amendment barred
recourse to the death penalty after a defendant's extended
incarceration on death row. Accordingly, the State of Texas
urges that the federal abuse-of-the-writ doctrine precludes
review of the merits of this claim.
Rule 9(b) of the Rules
Governing Sec. 2254 Habeas Proceedings authorizes a federal
court to dismiss a serial habeas petition if failure to
assert new grounds in a prior petition amounted to an abuse
of the writ. McCleskey v. Zant, 499 U.S. 467, 490, 111 S.Ct.
1454, 1468, 113 L.Ed.2d 517 (1991), held that "the same
standard used to determine whether to excuse state
procedural defaults should govern the determination of
inexcusable neglect in the abuse-of-the-writ context." Hence
"a claim in a serial habeas petition must be dismissed as an
abuse of the writ unless the petitioner demonstrates that
there was 'cause' not to have raised the claim in a previous
federal habeas petition, and 'prejudice' if the court fails
to consider the new claim." James v. Cain, 50 F.3d 1327,
1331 (5th Cir.1995).
In Selvage v. Collins, 975 F.2d 131, 133 (5th Cir.1992),
cert. denied, --- U.S. ----, 113 S.Ct. 2445, 124 L.Ed.2d 663
(1993), we concluded that a failure to raise a claim in an
earlier habeas petition may not be excused for cause "if the
claim was reasonably available" at the time of the first
petition. We explicitly highlighted the Supreme Court's
admonition in Engle v. Isaac, 456 U.S. 107, 129-130, 102
S.Ct. 1558, 1572-1573, 71 L.Ed.2d 783 (1982), that claims
are "reasonably available" even where their assertion would
in all likelihood be "futile." Thus, "an omission of a claim
[in an earlier habeas petition] may be excused for cause
only if the question was so novel that it lacked a
reasonable basis in existing law." James, 50 F.3d at 1331 (quoting
Selvage, 975 F.2d at 135) (alterations in original). A "reasonable
basis" demands only that counsel has the tools "to formulate
a constitutional question." Id. (citation omitted). By
definition, therefore, if "other defense counsel have
perceived and litigated [a] claim", cause for a serial
petition is not possible. Engle, 456 U.S. at 134, 102 S.Ct.
Although Fearance attempts
to link the advent of a "Lackey"-- claim to the date of
Justice Stevens's recent memorandum, this historical
revisionism is transparently erroneous. "[W]hile Justice
Stevens' memorandum in Lackey has given prominence to the
argument that delay in carrying out the death sentence
constitutes cruel and unusual punishment, the legal theory
underlying the claim is not new." McKenzie v. Day, 57 F.3d
1461, 1465 (9th Cir.1995), opinion adopted, 57 F.3d 1493
(9th Cir.1995) (en banc), cert. denied, --- U.S. ----, 115
S.Ct. 1840, 131 L.Ed.2d 846 (1995); Turner v. Jabe, 1995 WL
324034, at * 5, 1995 U.S.App. LEXIS 12522, at * 6-* 7 (4th
Cir. May 24, 1995).
Indeed, the Ninth Circuit
explicitly rejected Fearance's precise claim on the merits
Richmond v. Lewis, 948 F.2d 1473 (9th Cir.1990).
As Engle explained, "Even those decisions rejecting the
defendant's claim, of course, show that the issue had been
perceived by other defendants and that it was a live one in
the courts at the time." Engle, 456 U.S. at 133 n. 41, 102
S.Ct. at 1574 n. 41. In fact, this argument had been raised
decades before Fearance's 1992 federal petition. See
Chessman v. Dickson, 275 F.2d 604, 607 (9th Cir.1960) (application
for CPC "because [petitioner] has been confined in a death
cell for eleven and one-half years, thus he has been
subjected to cruel and unusual punishment").
attempt to defend Justice Stevens's comment proves too much.
In over 20 pages of briefing he endeavors to trace the
merits of a Lackey-claim back to the views of this nation's
founding fathers and the pre-revolutionary English common
contemporary support, he directs attention to the British
Privy Council's landmark decision in Pratt v. Attorney
General for Jamaica, 2A.C.1, 4A11E.R.769 (P.C.1993) (en banc),
which held that a delay between petitioner's deaths sentence
and his execution violated the Jamaican constitution. We
agree with the Fourth Circuit's conclusion that if Fearance
"wishes to cite the Privy Council he must acknowledge that
in 1983 the Privy Council rejected, over a dissent, a
constitutional attack based on the delay between a death
sentence and execution." Turner, 1995 WL 324034, at * 3,
1995 U.S. LEXIS 12522, at * 9. This alone suffices to
preclude "cause" for Fearance's omission of a cruel and
unusual punishment claim from his first federal habeas
petition. See Delo v. Stokes, 495 U.S. 320, 322, 110 S.Ct.
1880, 1881-1882, 109 L.Ed.2d 325 (1990) (per curiam) (prior
dissenting opinions discussing the claim refuted
petitioner's argument that his claim was novel).
Because Fearance is unable
to establish cause, his abuse of the writ will be excused
only if he can show that federal review of his claim is
necessary to prevent a fundamental miscarriage of justice.
We reject--as have three other circuits--Fearance's
attempt to expand "the narrow scope of the fundamental
miscarriage of justice exception." Sawyer v. Whitley, ---
U.S. ----, ----, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269
(1992). The Supreme Court has applied the "actual innocence"
exception only where a petitioner claims to be actually
innocent of the crime for which he was convicted, Murray v.
Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-2650, 91
L.Ed.2d 397 (1986), or where a petitioner claims to be
actually innocent of his death sentence. Sawyer, --- U.S. at
---- - ----, 112 S.Ct. at 2519-25.
Citing Sawyer, Fearance
argues that he is now actually innocent of the death
penalty, or technically that he is "constitutionally
ineligible " as a result of the state's delay in executing
his sentence. The special Sawyer-version of the "miscarriage
of justice" exception is limited to assertions of errors of
constitutional magnitude occurring at sentencing. The
language of Sawyer demanding the petitioner "show by clear
and convincing evidence that but for a constitutional error,
no reasonable juror would have found him eligible for the
death penalty under applicable state law," --- U.S. at ----,
112 S.Ct. at 2523, cannot logically be exported to other "defects"
in a death sentence. Fearance cannot identify any error at
his sentencing--and most assuredly is not "actually innocent"
of capital murder.
Furthermore, even assuming
a valid Lackey-claim is conceptually possible,
the execution of a murderer whose crime otherwise merited
the death sentence would not rise to the level of a
fundamental miscarriage of justice. See McKenzie, 57 F.3d at
1467 ("[I]t is unclear to us whether, even if it were held
that delay in the imposition of the death penalty
constitutes cruel and unusual punishment, commutation of the
death penalty will turn out to be the appropriate remedy.")
According to Fearance's own theory, he has already suffered
the cruel and unusual punishment occasioned by delay;
executing him immediately would not add to this type of
Finally, we resent
Fearance's attempt to manipulate the record for the purpose
of presenting an "attractive" Lackey-claim to courts that
are willing to indulge such arguments. Although he did
commit his offense in 1977 and has not yet been executed,
Fearance suggests that this "inordinate delay [was] not
attributable to his own conduct." (emphasis in original). In
contrast, the state trial court adopted the following
chronology as historical fact:
This offense occurred on December 23,
1977. [Fearance] was first convicted and assessed the death
penalty on July 8, 1978, barely six months after the offense.
[Fearance's] first appeal to the Court of Criminal Appeals
asserted forty-five grounds for review and resulted in a
reversal and remand of his case for a new trial on September
17, 1980, based upon Supreme Court precedent, Adams v.
Texas, 448 U.S. 38 [100 S.Ct. 2521, 65 L.Ed.2d 581] (1980),
not issued until nearly 2 years after his trial. [Fearance]
presumably benefited from the delay, because he had received
a resolution of his appeal prior to issuance of Adams, his
first conviction presumably would have been affirmed, and he
would have been executed. [Fearance] filed a motion for
rehearing after the remand for a new trial, which was denied
on May 27, 1981.
[Fearance] received a second trial, and
he was convicted and sentenced to death for the second time
of October 21, 1981, only five months after his motion for
rehearing was denied. [Fearance] thereafter appealed again
to the Court of Criminal Appeals, this time asserting twenty-four
points of error, all of which were eventually found by the
Court of Criminal Appeals to be meritless. Significantly, [Fearance]
filed a plea to the jurisdiction to attempt to delay the
second trial and then contended without success in that
second direct appeal that the trial court re-tried him too
soon, before certiorari was denied on his original appeal,
and that the trial court therefore lacked jurisdiction. [Fearance
v. State ] 771 S.W.2d at 495 [ (Tex.Cr.App.1988) ].
[Fearance] filed a motion for new trial
after the second conviction, which was denied in a bare two
weeks. The record of this second trial was not completed and
filed with the Court of Criminal Appeals until August 3,
1982, nearly ten months after the trial, and apparently
without objection by [Fearance]. [Fearance] thereafter moved
for multiple extensions to file his brief, and he did not
file the brief until April 28, 1983, one-and-one-half years
after the second jury verdict. The State thereafter filed
its reply brief to [Fearance's] twenty-four points of error
in December 1983, after filing a single extension motion to
which [Fearance] lodged no objection. The Court of Criminal
Appeals thereafter held the case for five years after which
it issued a published opinion nearly 30 pages in length
addressing [Fearance's] points of error. [Fearance] lodged
no objection with the Court of Criminal Appeals during this
five year delay, nor did he file any motions to expedite the
appeal. When the conviction was affirmed, [Fearance] filed a
motion for rehearing, which was denied in approximately two
months' time. [Fearance] thereafter petitioned the Supreme
Court for writ of certiorari, which was denied July 3, 1989.
The Court of Criminal Appeals issued its
mandate on July 6, 1989, after which, on July 31, 1989, the
trial court set an execution date of October 18, 1989. [Fearance's]
counsel filed the first application for state habeas corpus
on October 3, 1989, over three months after certiorari was
denied, over two months after the execution date was set,
and only two weeks prior to the October 18, 1989 execution
date. The trial court was obliged to modify the execution
date in order to appoint experts and hold an evidentiary
hearing on [Fearance's] claims of mental disease and
incompetence. After a protracted hearing, an amended
application by [Fearance] filed January 18, 1990, and
testimony by numerous experts, see this Court's Findings of
Fact and Conclusions of Law, cause no. W81-11256-K(A), this
Court found that there was no definitive evidence of mental
disease. This Court also found that [Fearance] had been
found by mental health experts to be aware that incompetence
claims could delay his execution and to be "malingering."
This Court issued its findings in November, 1990, after [Fearance]
filed his brief with the Court on May 11, 1990, asserting
competence and Penry claims. The Court of Criminal Appeals
thereafter held the case for resolution of these claims for
approximately ten months, after staying the January 1991
execution date, and again [Fearance] filed no objection to
the delay, nor did he file any motions to expedite review of
the writ application.
[Fearance] thereafter filed a second
state habeas application on January 16, 1992, over four
months after his first application was denied by the Court
of Criminal Appeals. The trial court issued its findings on
this application 33 days after it was filed, and the Court
of Criminal Appeals denied the application two weeks later.
The trial court having set a new
execution date of March 20, 1992, [Fearance] filed a
petition for habeas corpus with the U.S. District Court,
which was denied by the federal district court on July 6,
1994, again with no complaint by [Fearance] regarding delay
in resolving the appeal. On March 21, 1995, the Fifth
Circuit Court of Appeals denied [Fearance] a certificate of
probable cause to appeal the federal district court's
decision, and on March 31, 1995, this Court set the current
execution date of June 20, 1995, [Fearance] filed a motion
to delay the current execution date in order to allow him
more time to prepare a petition for writ of certiorari on
the federal habeas corpus petition, although the deadline
for filing that certiorari petition is June 19, 1995, prior
to the execution date. Only after this Court denied [Fearance's]
motion to further delay his execution did [Fearance's]
attorneys announce their intention to file this application
for habeas corpus, and the application was in fact not filed
until three weeks later, less than one month before the
current execution date, along with a motion for evidentiary
hearing and for re-appointment of the same mental health
expert who examined [Fearance] five years ago. This
application was the first pleading in nearly seventeen years
of appeals in which [Fearance] has raised his current claim--that
his appeal has lasted too long.
This course of events is
supported by the record, has not been disputed by Fearance,
and must be presumed correct on federal habeas review. 28
U.S.C. Sec. 2254(d). What it shows is that Fearance was not
the unwilling victim of a Bleak House--like procedural
system hopelessly bogged down; at every turn, he, without
complaining about the accumulating period on death row,
sought extensions of time, hearings and reconsiderations.
current death sentence was not assessed until October 1981,
at the conclusion of his second trial. He never faced an
execution date until October 1989, after his second
conviction was affirmed, because Texas state law precluded
the trial court from setting an execution date while his
direct appeal was pending. See Tex.Code Crim.Proc.Ann. art.
42.04 ("When a defendant is sentenced to death, no date
shall be set for the execution until after the receipt by
the clerk of the trial court of the mandate of affirmance of
the court of criminal appeals.").
Fearance also argues that
his application for CPC should be granted because, under
Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d
335 (1986), he is presently incompetent to be executed. (Claims
I and 2 in Fearance's application for CPC in this court) To
the extent that his assorted challenges rest on objections
to forced medication, we hold them to be procedurally barred
from our review. We will, however, consider Fearance's
assertion that his present mental illness renders him
constitutionally unfit for the death penalty.
A. Present Competence
Nonetheless, our settled
precedent compels us to conclude that no constitutional
barrier exists to executing the petitioner in his present
state. Indeed, this was the conclusion reached by the
district judge in Fearance's initial round of federal habeas
corpus review. See Fearance v. Collins, No. 3:92-CV-0488-X (N.D.Tex.
July 6, 1994). Of course, this court would normally refuse
to revisit claims raised in a prior federal petition absent
"cause and prejudice."
Because Ford claims, however, concern the petitioner's
immediate mental state, neither this court nor the Supreme
Court has definitively decided whether relief would
appropriately be denied on either abuse of the writ or
successive petition grounds. See Barnard v. Collins, 13 F.3d
871, 878 (5th Cir.1994).
This does not mean that
the federal district court should have held an evidentiary
hearing on Fearance's sanity. Instead, the state habeas
court concluded a hearing vis a vis petitioner's competence
to be executed within the last three weeks. "This court has
previously determined that a state court's finding of
competency to be executed is entitled to a presumption of
correctness under Sec. 2254(d)." Barnard, 13 F.3d at 877 (citation
Although Fearance contends
that the state court's refusal to appoint a forensic expert
destroys this presumption, he fails to provide any authority
that such a decision impels the conclusion that the state
court did not "afford a full and fair hearing." To the
contrary, the record amply supports the trial court's
conclusion that Fearance meets the operative definition of
competency for purpose of execution.
In Lowenfield v. Butler,
843 F.2d 183, 187 (5th Cir.1988), this court adopted the
standard enunciated by Justice Powell as the Ford criterion.
Accordingly, all we require is "that a person know the fact
of his impending execution and the reason for it." Barnard,
13 F.3d at 876 n. 2 (citation omitted). Fearance's own
testimony on June 2, 1995, in the state court is sufficient
to meet this threshold. Petitioner testified that he knew
the date scheduled for his execution, the date of the
offense for which he was on death row, that he was sentenced
to die for murdering Larry Faircloth, and that the murder
was alleged to have occurred during the course of a burglary.
See Transcript of State Habeas Hearing at 57-58, 70-72.
In addition to this
presumption of correctness, the federal habeas court, with a
petitioner who was either judged competent to stand trial or
did not raise a serious issue for the trial court of his
mental capacity, may "presume that [Fearance] remains sane
at the time sentence is carried out, and may require a
substantial threshold showing of insanity merely to trigger
the hearing process." Lowenfield, 843 F.2d at 187, citing
Ford v. Wainwright, 477 U.S. at 425-426, 106 S.Ct. at
2609-2610 (Powell, J., concurring). This court specifically
held that a doctor's "conclusion" that the petitioner "suffer[s]
from paranoid schizophrenia falls woefully short of a
finding that [petitioner] is so deranged that he is unaware
that he is about to be put to death as a result of his
earlier conviction and sentence for murder."
There was also no reason
for the federal district court to have appointed a
psychiatrist or ordered an independent psychiatric
examination, pursuant to 21 U.S.C. [sec.] 848(q)(4)(B),
(q)(9). Keeney v. Tamayo-Reyes, 504 U.S. 1, 9-13, 112 S.Ct.
1715, 1720-21, 118 L.Ed.2d 318 (1992), demands that Fearance
establish "cause and prejudice" for his failure to develop
in state court the facts necessary to support his federal
petition. Both prongs present an obstacle for Fearance;
prejudice would be difficult--if not impossible--to
establish where petitioner's own testimony evinces awareness
surpassing our circuit's competency test, and cause is
lacking where petitioner does not avail himself of the
express opportunity to subpoena prison medical health
professionals who had treated Fearance. In state court, the
judge repeatedly admonished Fearance's counsel that he could
subpoena TDC doctors who have handled Fearance's psychiatric
care for over ten years.
The state court did, however, admit and consider the
voluminous TDC medical records concerning Fearance's care.
Further, it borders on
disingenuousness for Fearance to assert in a motion filed
less than one month before his scheduled execution that
because he is an indigent he is entitled to a court-appointed
psychiatric evaluation, and because the court denied his
motion, he could not put on his chosen expert. The Texas
Resource Center was established to assist prisoners
sentenced to death in Texas. Although the bulk of its
funding is from the federal government, it is not prohibited
from spending non-federal money to assist prisoners in state
habeas proceedings. According to its 1993 Annual Report, the
Resource Center received about $570,000 in that year from
non-federal sources. The funding levels have not declined.
Most of the 400 Texas death row inmates are not at any given
time actively litigating their cases. Surely some of the
Center's non-federal money was available for an updated
psychiatric report of Dr. Crowder in support of Fearance's
motion. See Petitioner's Offer of Proof, State Habeas
Hearing at 10, 79-83. Keeney barred the federal district
court from conducting another evidentiary hearing.
B. Forced Medication
assertion that his execution is foreclosed because of "his
forced medication with a powerful antipsychotic drug" stands
on wholly different grounds.
Specifically, he argues to this court that it should issue a
CPC because the question of whether forced medication to
induce or ensure competence for execution has not been
directly addressed by the United States Supreme Court.
Fearance acknowledges that the Court has considered related
issues of forcible medication in Washington v. Harper, 494
U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), and
Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d
479 (1992), and suggests that two state Supreme Court
decisions indicate that the question is debatable among
jurists of reason.
(Notably, both cases rest on privacy provisions in the state
constitution.)Albeit an interesting and important issue,
Fearance has no vehicle to present it for our determination
at this last moment. Although he did include the issue in
his latest, i.e., third, collateral petition in state court
filed on May 25, 1995, he omitted any similar concern from
his second state petition filed in 1992.
Not surprisingly, the state trial court faced with
Fearance's third application for writ of habeas corpus found
that the "claims advanced in this application could--and
should--have been litigated ... in the first or second
application for writ of habeas corpus." The court explicitly
found that Fearance "abused the habeas corpus process by
raising these claims in a dilatory fashion," and, in the
refused to consider these new contentions. The Court of
Criminal Appeals denied relief and in a brief order adopted
all of the conclusions of the state district court.
Accordingly, this court is
barred from reviewing the merits of Fearance's forced
medication claims: The adequate and independent state ground
doctrine "bar[s] federal habeas when a state court decline[s]
to address a prisoner's federal claims because the prisoner
had failed to meet a state procedural requirement." Coleman
v. Thompson, 501 U.S. 722, 729-730, 111 S.Ct. 2546, 2554,
115 L.Ed.2d 640 (1991).
To be sure, this court has
stated that in the past Texas courts have not regularly and
strictly applied abuse-of-the-writ rules. Lowe v. Scott, 48
F.3d 873, 876 (5th Cir.1995). Nevertheless, in Ex Parte
Barber, 879 S.W.2d 889, 892 n. 1 (Tex.Cr.App.1994), cert.
denied, --- U.S. ----, 115 S.Ct. 739, 130 L.Ed.2d 641
(1995), the highest court of the State of Texas announced
that it would as a "rule" dismiss as abuse of the writ "an
applicant for a subsequent writ of habeas corpus rais[ing]
issues that existed at the time of his first writ."
Consequently, when the state district court dismissed an
issue raised in Fearance's third petition that was not
raised in his earlier petition it was no longer acting with
any discretion. After Barber, dismissals of Texas habeas
petitions as an abuse of the writ should create a procedural
bar under the Coleman standard. Thus, Fearance must
establish "cause" and "prejudice" from our failure to
consider his claim.
Coleman, 501 U.S. at 750-751, 111 S.Ct. at 2565 (cause and
prejudice standard "uniformly" applicable to all independent
and adequate state procedural defaults).
predicament, Fearance notes that an exception to the abuse
of the writ doctrine exists if the claim asserted is novel.
Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1
(1984). To prevail, Fearance must--at least--plausibly argue
that this type of constitutional attack was not reasonably
available in 1992 when he filed his second state habeas
petition. And, indeed, he does urge this notion.
That the United States
Supreme Court granted certiorari on this forcible medication
claim in 1990 undermines the respectability of such a
proposition. See Perry v. Louisiana, 494 U.S. 1015, 110 S.Ct.
1317, 108 L.Ed.2d 492 (1990) (trial court ordered
administration of antipsychotic drugs to the prisoner for
purposes of execution).
Even without such a
dramatic siren, reasonably diligent counsel have long had
the tools to construct this argument. As the Louisiana
Supreme Court explained in 1992, "For nearly a century it
has been well-settled in Louisiana that one who has been
convicted of a capital crime and sentenced to suffer the
penalty of death, and who thereafter becomes insane, cannot
be put to death while in that condition." Perry, 610 So.2d
746, 750 (La.1992) (citing cases dating back to 1897).
Moreover, Fearance cannot
legitimately assert that the facts underlying his forced
medication claims are novel as of the filing of his third
state petition. His mental health issue was first developed
in state habeas hearings during 1990. Even at that time, the
prison medical records showed he had been medicated with
Haldol throughout at least 1988 and 1989. Typical of these
records is one dated November 18, 1988, which reports that
he had repeated admissions to the psychiatric unit for
treatment for psychotic relapses "secondary to medication
non-compliance." He suffered from "periodic poor medication
compliance." See Appendix to Third State Court Petition for
Habeas Relief, Exhibit B, "Psychiatric Records from TDCJ,"
at 136; See also id., e.g., pp. 122, 124, 135, 140-141,
189-91, 200. There is no question that a claim for forcible
medication could have arisen from these treatments before
his first state hearing, and certainly prior to his second
state petition in 1992.
For the foregoing reasons,
Fearance's petition for CPC and motion for stay of execution