Ricky Lee GREEN
- Rape - Sexual
Number of victims: 4 - 12
Date of murders: 1985 - 1986
Date of birth:
Victims profile: Jeffrey Davis,
Steven Fefferman, 28 /
Sandra Bailey, 27 / Betty Jo
Method of murder: Stabbing
Beating with a hammer
Location: Tarrant County, Texas, USA
by lethal injection in Texas on October 9,
Date of Execution:
I want to thank the
Lord for giving me this opportunity to get to know Him. He
has shown me a lot and He has changed me in the past two
I have been in
prison 8˝ years and on Death Row for 7, and I have not
gotten into any trouble. I feel like I am not a threat to
society anymore. I feel like my punishment is over, but my
friends are now being punished.
I thank the Lord
for all He has done for me.
I do want to tell
Ricky Lee GREEN
Serial killer Ricky Lee Green, 36, was pronounced dead on October 9, 1997, after being lethally
injected by prison authorities in Huntsville, Texas. "Now we can go
on and not have to worry about him getting out and hurting anyone else,''
said Shirley Bailey, the sister of one of his known victims.
Speaking quietly and slowly, Green
turned to four relatives of his victims and said he was sorry. "This
to me is another killing and it's not going to solve nothing. I feel my
punishment is over and now my friends and family are being punished."
Executioners had trouble finding "a suitable vein," thanks to
Ricky's fondness for intravenous drugs. Before dying the convicted
killer reminded onlookers that he had been a model prisoner while on
The one-eyed radiator repairman was
condemned to death for the Dec. 27, 1986, murder of Steven Fefferman, an
advertising executive for a Fort Worth television station. Fefferman,
28, was castrated and repeatedly stabbed with a butcher knife at his
home after having sex with Green.
He also admitted killing three people
in 1985, including a 16-year-old boy who was also castrated and stabbed
Green had been sentenced to life prison terms for two of the other
Fort Worth police Detective Danny LaRue asked Green at the
time of his arrest why he killed, his reply was: "They all deserved
it. They were kind of the dregs of society." LaRue believes eight
other unsolved murders in North Texas bear Green's trademarks.
Convicted Serial Killer Is Executed in Texas
The New York Times
October 9, 1997
A convicted serial killer tied to four murders in
Texas and suspected of at least eight more deaths was executed today
for a sexual mutilation slaying almost 11 years ago.
The inmate, Ricky Lee Green, 36, was pronounced
dead at 6:31 P.M., central daylight time, seven minutes after a dose
of lethal drugs was released into his right arm.
In his final statement, Mr. Green thanked ''the
Lord above,'' his friends and his fellow death-row inmates. He also
noted that he had been in prison for eight and a half years, the last
seven on death row, and had caused no trouble.
Mr. Green addressed four relatives of his victims,
who watched through a window a few feet away, and said he was ''really
sorry, but this to me is another killing and it's not going to solve
As the lethal solution took effect, he gasped
several times before he stopped breathing. Only one needle was used on
Mr. Green instead of the customary two. Prison officials were unable
to locate a suitable vein in the left arm of the longtime drug user.
Mr. Green, a radiator repairman portrayed by
prosecutors as a psychopath, was condemned for the Dec. 27, 1986,
death of Steven Fefferman, an advertising executive with Fort Worth
television station KXAS.
Ricky Lee Green
In his final statement, Green thanked "the Lord
above" and noted that he had been in prison for 8 years and caused
"I feel I'm not a threat to society no
more," he said, speaking quietly and slowly. "I feel my
punishment is over and now my friends and family are being punished."
Turning to 4 relatives of his victims, who watched
through a window a few feet away, Green said he was "really sorry,
but this to me is another killing and it's not going to solve nothing."
Green, a 1-eyed radiator repairman, was condemned for
the Dec. 27, 1986 death of Steven Fefferman, an advertising executive
with Fort Worth television station KXAS.
Fefferman, 28, was castrated and repeatedly stabbed
with a butcher knife at his home after he and Green had sex, according
to testimony at Green's trial.
"He's real cold," said former Fort Worth
police Detective Danny LaRue. "When I finally got through with the
confessions and asked him why he killed these people, his reply was:
"They all deserved it. They were kind of the drugs of society."
Green was sentenced to life prison terms for 2 other
Jeffrey Davis, 16, was castrated and stabbed like
Fefferman in April 1985. His nearly decapitated body was found in a
swamp at the Fort Worth Nature Center.
Sandra Bailey, 27, who met Green in a country-western
bar in November 1985, died from stab wounds and hammer blows to the head.
Her body was dumped in a ditch.
He also confessed to killing 28-year-old Betty Jo
Monroe of Amarillo, a topless dancer who was hitchhiking in Fort Worth
in October 1985 when she was picked up by Green. She had been stabbed,
mutilated and beaten in the head with a hammer.
LaRue, now retired and working as a private detective,
said 8 other unsolved murders in North Texas bear Green's trademarks.
Ricky Lee Green & Sharon Dollar
Ricky lee green was horribly abused by his father and
grandfather for many years. His father was abusive in ways no human
could ever imagine. At the age of six ricky lee greens father bill green
forced his son to run from the porch where his father sat with a bb gun.
At the count of ten he was told to run while his father shot at him
hitting him with the small metal bb's. The six year old tried to out run
the bb's but it was no use he was hit everytime. The only comment he
ever heard form his father was maybe you better learn to run faster.
This is only one example of his life long abuse by his
father. there were other kinds of abuse that he endured like
beatings,verbal abuse,and sexual abuse. From the time he was born all Ricky
Green ever remembered hearing from his father was how he was no
good and never would be. Ricky Green on several occasions in his
Childhood was sent to stay with his grandfather who
sexually sodimized him time after time. Ricky could never understand if
they were supposed to love him why they always hurt him.
On february 18, 1984 Ricky married Mary
felt that she was the closest he had to a normal family. there
relationship was based solely on sex.
There marriage started to deteriorate after only two
months. Ricky suspected that mary sought sexual satisfaction from others.
Ricky was very unhappy. He drank a lot and drove around to escape
reality. One night when Mary got home from work Ricky was sitting in the
livingroom heavily drinking. he pulled a knife on her and raped her. When he passed out she
grabbed her belongings and left never to return.
A couple of weeks later ricky met a women by the name
of Sharon Dollar. There first night together was all sex and booze.
Three days after Ricky and Sharon were together she asked him to move in
with her and he said yes. Although Ricky was happier with sharon then he
had ever been in his life his drinking steadily increased.
One night in the middle of hot passionate
sex Sharon pricked Ricky's penis with a needle longing for the taste of
blood. Ricky at first objected to the pain but it was to late she was
already sucking the blood from his penis relieving his pain. This was
the first time Ricky noticed Sharon's pleasure for blood.
The first victim of Ricky was a teen by the name of
Jeffrey Davis. Ricky had met davis before and invited him to hang out
with him since Sharon was out of town.
The two went driving around. Ricky made a stop to
urinate, when he returned he found Davis in the passenger seat
masterbating. Davis asked Ricky if he'd like to touch him and Ricky got
mad and beat Davis. they continued to drive around and the more Davis
complained the more Ricky beat him until finally Ricky pulled
Over to a secluded area and dragged Davis out of the
car beating him and mutilating Davis with a knife. Ricky killed Davis
and proceeded to cut off his penis and toss it into the nearby lake. He then disposed of the body in a secluded area nearby.
On september 20, 1980 Ricky and Sharon
The next victim was for the sexual pleasure of now husband and wife Ricky and
Sharon Green. Ricky was driving along the road when he spotted
a women hitchhiking. He pulled over to give her a ride. The women stuck
her head in the window and said her name was montana. Ricky asked her if
she would like to take a shower and get cleaned up.
She agreed and they went back to his house.
was taking a shower he went into the bathroom and opened the shower
curtain and asked her if he could join. The two had sex in the shower
and it continued on into the bedroom. He then told her it was time to
pick up his wife from work.
When he arrived to pick up Sharon she was surprised to see a women in the car.
When they got back to the house ricky propositioned sharon with the idea
that all three have sex. They agreed and went into the bedroom. When Sharon appeared naked at the doorway
Montana changed her mind, but it was
to late the two already had there minds set.
Ricky and Sharon tied Montana to the bed.
kicked and screamed. The two soon tired of her and drug her to the
bathroom where Ricky tried to sodimize Montana.
Sharon went to the
kitchen to retrieve a knife. Without warning Sharon thrust the knife
into Montana. Ricky went into the bedroom to get his pocket knife. When
he returned he saw Montana try to get up so he stabbed her again and
again. Ricky again left to get a large hammer. He then bashed her head
in three or four times. Sharon wanted to try it also so she then to hit
Montana in the head. Montana was dead and they just stood there looking
at what they had done.
With the dead corpse lying there and blood all over
the walls Ricky leaned over and started to fondle Sharons breast. Sharon
immediately got turned on and Sharon and Ricky had the most powerful sex
in the blood of there victim. Afterwards they proceeded to clean the
bathroom and load the corpse into the trunk of their car to dispose of
the body. They took her to a secluded area and dumped her.
Rickys next victim was a women by the name of
Sandra Bailey. He met her at a club he frequented. He took her back to his
house where his wife was waiting.
When Sandra saw Rickys wife she wanted to go home.
two tied her up and proceeded to carry out the same scenerio they did
with Montana. The only thought the two had afterwards was that the sex
was not as powerful as it was the first time. They took the body and
disposed of it in the same fashion they did Montana.
Rickys final victim was a man by the name of
Steven Fefferman. Ricky met Feeferman in a parking lot frequented by
Ricky agreed to go back to Stevens home with him.
arrived Steven started to fondle Ricky in the livingroom. Steven excused
himself to take a shower.
When he returned he found Ricky in the bedroom.
Ricky asked Steven if he could tie him up and each would take a turn at
being tied up. After Ricky tied up Steven he pulled out a knife and
started to tell Steven that he hated homosexuals. He then proceeded to
stab him with the knife again and again.
Steven was still alive after
the stabbings and Ricky went into the kitchen and got a kitchen
knife and stabbed Steven in his throat all the time repeating that he
hated homosexuals. He then proceeded to cut open Steven from sternum to
Steven was still alive gasping for air.
Rickys last horrific
blow came when he cut off Stevens penis and shoved it into his mouth to quit his moans.
Ricky then riffled
through Stevens things taking some money and fleeing the scene.
Ricky returned home and told his wife what he had
done. She quieted him and told him everything was going to be ok. There
marriage seemed to go down hill following the murders. The both of them
drank heavily and started using drugs. A few years later Sharon packed
her things and left.
Ricky never heard from Sharon much, after she left.
One night Rickys house was surrounded by police and he was arrested for
capital murder for the death of Steven Fefferman. Ricky knew the day
would come but he never knew it would be at the hands of Sharon the wife
Ricky was sentenced to death by lethal injection for
the murder of Steven Fefferman. He got three life sentences, one for each
murder. Sharon green only got 10 years probation for her part in the
crimes. Love is a feeling no one can describe but is love worth all this?
Ricky Lee Green
was put to death Oct. 8, 1997 for the December 1986 murder of
advertising executive Steve Fefferman.
After Green was
sentenced for the murder of Fefferman, he was tried for two
other murders, and given life sentences for each. Green was
suspected in at least 12 other murder cases throughout the state
of Texas. “He left his mark all over the state,” Detective
Daniel LaRue said.
The Fefferman case
sparked so much media attention in Fort Worth, Texas, the trial
had to change venue to Austin, Texas.
“The brutality of
these crimes was is impossible to describe,” Prosecuting
Attorney Marc Barta said. “With confessions, bloodstained knives
and photographs, the likelihood of an acquittal was minimal.”
The evidence was so
disturbing at times that some jurors had to leave the room. One
woman excused herself to vomit. There were also reports of jury
members seeking psychiatric care following the trial.
Referring to an
article from the Dallas Morning News, “By the time Mr. Green met
Mr. Fefferman, he had already established his killing technique:
excessive stab wounds and sexual mutilation.”
On the phone, Barta
revealed details about the Fefferman murder. “They (Green and
Fefferman) met at a park close to a beach near Fort Worth.
Green took Fefferman to his house, tied him up, mutilated and
left “his mark” at each murder scene.
approximately 50 stab wounds to each victim. Some of the
victim’s throats were cut. The male victim’s genitals were cut
off and put in their mouths,” LaRue said.
desperately wanted a conviction in this case. Texas law at that
time, however, did not sentence people to death for serial or
“In order to
receive the death penalty, Green had to kill his victim in the
commission of another act,” Defense Attorney David Bays said.
“Ricky didn’t kill Fefferman just so he could rob or rape him,
he killed because it was something he liked to do.”
However, both Barta
and LaRue agreed that Green had committed murder in the
commission of another act. “During the confessions, Green
admitted to taking things of value,” LaRue said.
strategy to this case was that Green had been abused as a child.
“Green’s father, Bill, poked him and his brother with cattle
prods,” Bays said. “When Ricky was two-years-old, Bill would
lock the boys in the closet and growl from the other side to
scare the boys.” In the trial it was also revealed that Bill
would try to drown the boys for punishment.
Barta refuted this
testimony of child abuse, from Green’s brother and cousin, by
first cross-examing them. Then, an expert witness testified
that there is no correlation between child abuse and murder.
On Sept. 14, 1990,
one year after being indicted for Fefferman’s murder, Green was
Appeals were made
in an attempt to save his life. In January 1994, Green filed a
state habeas relief, which was denied. On Oct. 3, 1997 Green
was scheduled for execution, but was granted a brief stay until
his inevitable death on Oct. 8.
Ricky Green’s last
words were, “This to me is another killing and it’s not going to
solve nothin’. I feel my punishment is over and now my friends
and family have to suffer.”
Green, 36, was
pronounced dead just seven minutes after the lethal dose was
“A lot of what
happened was a product of excess drinking and smoking dope.
Almost everything he did was in an alcoholic haze,” Bays said.
“Ricky was like a human bonsai tree, every time he would try to
grow into a person, Bill Green would cut him down.
39 F.3d 582
In the Matter of
Ricky Lee GREEN, Petitioner.
Court of Appeals,
Nov. 28, 1994.
Petitions for Writs of
Mandamus to the United States District Courts for the Northern
and Western Districts of Texas.
Before GARWOOD, SMITH and
DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In this capital habeas
corpus proceeding brought pursuant to 28 U.S.C. Sec. 2254, the
petitioner, Ricky Green, has filed a petition for writ of
mandamus that calls upon us to decide which federal district
court or courts have jurisdiction. On the basis of a recent
decision of this court, we conclude that there is jurisdiction
in the Western and Southern Districts of Texas but not in the
Northern District of Texas.
In 1989, Green was indicted
in Criminal District Court No. 4 of Tarrant County, Texas (a
county within the Northern District of Texas), with the
capital murder of Steven Fefferman. After jury selection began,
the state withdrew its objection to Green's motion for change
of venue, which the trial court then granted, and the case was
transferred to Travis County, Texas (a county in the Western
District of Texas), for trial in the 167th Judicial District
Court of that county.
Following a jury trial,
Green was found guilty of capital murder in 1990 and was
sentenced to death. Venue then was transferred back to the
Tarrant County court. The Texas Court of Criminal Appeals
affirmed the conviction and sentence. Green v. State, No.
71,170 (Tex.Crim.App. Dec. 9, 1992) (unpublished), cert.
denied, --- U.S. ----, 113 S.Ct. 3011, 125 L.Ed.2d 702 (1993).
In January 1994, Green applied to the Tarrant County trial
court for state habeas relief, which was denied. Ex parte
Green, No. 26,331-01 (per curiam) (Tex.Crim.App. Apr. 19,
On August 16, 1994, the
Tarrant County trial court scheduled Green's execution for
October 4, 1994. On September 19, Green filed, in the Northern
District of Texas, a motion for appointment of counsel and
stay of execution.
On September 21, the federal court appointed an attorney from
the Texas Resource Center as Green's counsel but denied,
without prejudice, the request for stay. The court directed
Green to file a federal habeas petition by September 27 or
tell the court, by that date, that he did not intend to file a
On September 27, Green filed
a notice of intent not to file a federal habeas petition. He
also filed a motion to withdraw his motion for appointment of
counsel and stay of execution, asking the court to rescind its
orders made pursuant to that pro se filing and to dismiss the
As justification for the motion, Green stated that his
attorney had just discovered that the Northern District court
was without jurisdiction. The court then ordered briefing on
On September 30, Green filed
a second state habeas petition in the Tarrant County trial
court. On October 3, the Court of Criminal Appeals adopted the
trial court's recommendation and denied relief on the
procedural ground that the court would not consider the
petition while Green's case was pending in federal court. Ex
parte Green, No. 26,331-02 (Tex.Crim.App. Oct. 3, 1994) (per
curiam). On that same date, Green filed a notice of voluntary
dismissal of the Northern District habeas proceeding pursuant
to FED.R.CIV.P. 41(a)(1).
Also on October 3, at
approximately 3:30 p.m., which was about nine hours before his
scheduled execution, Green filed a federal habeas petition and
motion for stay of execution in the Western District of Texas.
The Western District court, on the state's motion, transferred
the proceeding to the Northern District at approximately 5:00
p.m. that same day.
The state then announced
that it had no objection to a stay of execution. In this court,
Green filed a motion for stay of execution and mandamus
actions seeking to compel the return of the case to the
Western District. We then entered a stay of execution but took
no action on the pending mandamus actions.
On October 4, the Northern
District court entered an order concluding, on the basis of
Dobard v. Johnson, 749 F.2d 1503 (11th Cir.1985), that the
Western, Northern, and Southern Districts of Texas have
concurrent jurisdiction to entertain a federal habeas petition
from Green. Accordingly, the court reasoned, the transfer from
the Western District to the Northern District was proper. The
court ordered the state to respond to the federal habeas
Federal habeas corpus
jurisdiction is determined by 28 U.S.C. Sec. 2241(d), which
reads as follows in regard to a state containing more than one
federal judicial district:
[T]he application may be filed in the
district court for the district wherein such person is in
custody or in the district court for the district within which
the State court was held which convicted and sentenced him and
each of such district courts shall have concurrent
jurisdiction to entertain the application. The district court
for the district wherein such an application is filed in the
exercise of its discretion and in furtherance of justice may
transfer the application to the other district court for
hearing and determination.
Although Green is
incarcerated in the Southern District of Texas, which
indisputably would have jurisdiction under the statute's plain
language, the only dispute here is in regard to jurisdiction
in the Western and Northern Districts.
The controversy centers on
the meaning of the words "the district within which the State
court was held which convicted and sentenced " the criminal
defendant. (Emphasis added.) Green argues that his case is
controlled by this court's recent decision in Gosch v. Collins,
20 F.3d 1170 (per curiam) (table), No. 93-8635 (5th Cir. Apr.
6, 1994). We agree.
In Gosch, the petitioner was
indicted in Bexar County (in the Western District of Texas)
but was tried, convicted, and sentenced, on a change of venue,
in Victoria County (in the Southern District of Texas). As
here, the matter was returned to the county of indictment for
post-trial proceedings. The petitioner filed his federal
habeas petition in the Western District of Texas, whereupon
the district court dismissed the petition for lack of subject
On appeal, a panel of this
court concluded that there was no jurisdiction in the Western
District, because "under 28 U.S.C. Sec. 2241(d) ...
jurisdiction for habeas corpus petitions for Petitioner Gosch
lies only in the ... Southern District of Texas." This
constitutes an interpretation of the words "within which the
State court was held which convicted and sentenced him," to
the effect that post-trial proceedings, following sentencing,
are not to be considered in determining jurisdiction under Sec.
Accordingly, the present
facts--and those in Gosch--are easily distinguished from the
circumstance in Dobard, the authority principally relied upon
by the state. There, as here, indictment was in a county
within one federal district, but trial, on a change of venue,
was in a county within a different federal district. Following
trial, "some of the incidents of sentencing were, in the
physical sense, done in one county, some in the other." 749
F.2d at 1505.
The petitioner filed his
federal habeas petition in the district wherein the indictment
occurred. That district court transferred the proceeding to
the district where the trial was held. On appeal from the
transfer order, the Eleventh Circuit, referring to the
"peculiar circumstances" of the case, held "that where
substantial incidents of conviction and sentence are divided
between two federal judicial districts, either district court
is the court of conviction and sentence within the meaning of
Sec. 2241(d) and has power to entertain the petition on its
merits or transfer it." Id.
Obviously, the facts of the
instant case are like those in Gosch and dissimilar to those
in Dobard. We are bound by Gosch as the precedent of this
court. Accordingly, we conclude that jurisdiction lies in the
Western District of Texas and not in the Northern District of
We find it unnecessary,
however, to issue a writ of mandamus at this time. The two
district courts were dealing with a somewhat novel issue and,
in good faith, attempted to comply with the law. We are
confident that, in light of this opinion, they now will see to
it that this matter is transferred to the Western District of
Texas, which in turn will consider Green's habeas petition on
The petitions for writs of
mandamus are DENIED without prejudice.
116 F.3d 1115
Gary L. Johnson, Director, Texas Department of
Institutional Division, Respondent-appellee
United States Court of
Appeals, Fifth Circuit.
June 27, 1997
Appeal from the United
States District Court for the Western
District of Texas.
Before SMITH, DeMOSS and
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit
the denial of his petition for a writ of
habeas corpus filed under 28 U.S.C. §
2254 (West Supp.1997). Concluding that
failed to make a substantial showing of
the denial of a federal right, we deny
him a certificate of probable cause ("CPC")
and vacate the stay of execution.
April 1986, Green
was charged with the capital murder of
Steven Fefferman. Following his arrest,
the police with a statement concerning
his relationship with Fefferman.
According to Green,
he had met Fefferman on the eve of the
murder at Casino Beach, an area known to
be frequented by homosexuals.
a sexual encounter with Fefferman,
off his car at his own home and
proceeded to Fefferman's home, where the
two drank some beer and again engaged in
sexual activity. After
Green convinced Fefferman to
allow him to tie Fefferman to the bed,
Fefferman several times. Before leaving
Green sexually mutilated
Fefferman, ransacked the bedroom in
search of money, and left in Fefferman's
Following a jury trial,1
convicted of capital murder and
sentenced to death in September 1990.
During the sentencing phase, the court
admitted evidence of three other murders
to which Green
had confessed, which murders also
involved beatings and mutilation of
genitalia similar to those surrounding
the Fefferman murder, and also
stalking a seventeen-year-old girl and
assaulting two teenage boys.
represented during pre-trial by court-appointed
counsel Jeff Kearney and Suzie Johnson.
Following a change of venue, Kearney
withdrew and was replaced by David Bays.
A third attorney, Kenneth Houp, also was
appointed to assist in the pre-trial
proceedings, although his role ended
with the completion of jury selection.
represented throughout the trial by Bays
and Johnson, on direct appeal by Johnson
and Danny Burns, and on his first state
habeas application by Robert Ford.
conviction and sentence were affirmed on
direct appeal. See
State, No. 71,170 (Tex.Crim.App. Dec. 9,
1992) (en banc) (unpublished). The Court
of Criminal Appeals later denied
application for habeas relief. See Ex
No. 26,331-01 (Tex.Crim.App. Apr. 19,
1994) (en banc) (per curiam).
September 1994, Green
filed, in the United States District
Court for the Northern District of
Texas, a pro se motion for appointment
of counsel to file a federal habeas
petition pursuant to 28 U.S.C. § 2254
and for a stay of execution. After the
court granted Green
permission to proceed in forma pauperis
and appointed counsel,
Green filed a motion to withdraw
his pro se pleading on the ground that
jurisdiction lay properly in the Western
District of Texas.
in September 1994,
Green filed a second state habeas
petition in the Tarrant County trial
court, which petition was also denied by
the Court of Criminal Appeals. See Ex
No. 26,331-02 (Tex.Crim.App. Oct. 3,
1994) (en banc) (per curiam).
Concurrently with that denial,
Green filed a
notice of voluntary dismissal of the
Northern District habeas proceeding
pursuant to FED. R. CIV. P. 41(a)(1),
and filed a new petition in the Western
Western District petition was
transferred to the Northern District,
the situs of the indictment, which
transfer the Northern District concluded
was proper under Dobard
v. Johnson, 749
F.2d 1503 (11th Cir.1985). On appeal we
reversed, concluding that, pursuant to
Collins, 20 F.3d 1170 (5th Cir.) (per
curiam), jurisdiction lay in the Western
District. See In re
Green, 39 F.3d 582 (5th
Green asserted thirteen grounds
for habeas relief, each of which had
been exhausted in state court either on
direct appeal or through the state post-conviction
process. In July 1996, the district
court reviewed de novo and adopted the
findings of the magistrate judge to
grant the state's summary judgment
motion and to deny
Green's habeas petition.
Green filed his
application for a CPC in August 1996.
The district court, construing the CPC
application as an application for a
certificate of appealability ("COA"),
denied the application in September
threshold matter, we must determine
whether the Antiterrorism and Effective
Death Penalty Act ("AEDPA") of 1996,
Pub.L. No. 104-132, 110 Stat. 1214
(1996), governs the instant appeal.
Although we have held previously that
the standards of review set forth in the
AEDPA apply to all habeas petitions that
were pending on April 24, 1996, the date
on which the President signed the bill
into law, see Drinkard
v. Johnson, 97 F.3d 751, 764-66
(5th Cir.1996), we now must conclude
otherwise in light of Lindh
v. Murphy, ---
U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d
other things, the AEDPA amends § 2244
and §§ 2253-2255 of chapter 153 of title
28 of the United States Code, the
provisions that govern all habeas
proceedings in federal courts. See 110
Stat. 1217-21. The AEDPA also creates,
for habeas proceedings against a state
in capital cases, a new chapter 154 with
special rules favorable to the state,
but applicable only if the state opts in
by agreeing to provide for the
appointment of post-conviction counsel
in state habeas proceedings. See 110
Whereas the amendments to chapter 153 do
not contain an effective date, the AEDPA
provides expressly that the new chapter
154 "shall apply to [state capital]
cases pending on or after the date of
enactment of this Act." 110 Stat. 1226.
In Lindh, the Court construes "this
provision of § 107(c) ... as indicating
implicitly that the amendments to
chapter 153 were assumed and meant to
apply to the general run of habeas cases
only when those cases had been filed
after the date of the Act." --- U.S. at
----, 117 S.Ct. at 2063.
As we have already
noted, amended § 2254(d) (in chapter 153
but applicable to chapter 154 cases)
governs standards affecting entitlement
to relief. If, then, Congress was
reasonably concerned to ensure that
chapter 154 be applied to pending cases,
it should have been just as concerned
about chapter 153, unless it had the
different intent that the latter chapter
not be applied to the general run of
Nothing, indeed, but a different intent
explains the different treatment.
--- U.S. at ----, 117 S.Ct. at 2064.
have stated, chapter 154 is apposite to
capital cases only where states have
elected to opt in and have qualified to
participate by meeting the requirements
of § 107. Because the State of Texas has
not yet qualified for the expedited
procedures governing habeas petitions in
capital cases, see Carter
v. Johnson, 110
F.3d 1098, 1104 (5th Cir.1997), chapter
154 does not apply to the instant case.2
Thus, in light of Lindh 's explication
that "the negative implication of §
107(c) is that the new provisions of
chapter 153 generally apply only to
cases filed after the act," --- U.S. at
----, 117 S.Ct. at 2068, and given that
Green filed the
instant petition before the April 24,
1996, effective date of the AEDPA, we
apply pre-AEDPA habeas law to his claims.
the advent of the AEDPA, a petitioner
could not appeal a district court's
ruling on a habeas petition that
concerned detention arising from state
court proceedings unless a district or
circuit judge issued a CPC. 28 U.S.C. §
2253; see also Baldree
v. Johnson, 99 F.3d 659, 660 (5th
Cir.1996), cert. denied, --- U.S. ----,
117 S.Ct. 1489, 137 L.Ed.2d 699 (1997).
To obtain a CPC, the petitioner must
make a "substantial showing of a denial
of [a] federal right." Barefoot
v. Estelle, 463
U.S. 880, 893, 103 S.Ct. 3383, 3394, 77
L.Ed.2d 1090 (1983) (internal quotes and
citation omitted). Such a showing
requires a demonstration "that the
issues are debatable among jurists of
reason; that a court could resolve the
issues in a different manner; or that
the questions are adequate to deserve
encouragement to proceed further." Id.
at 893 n. 4, 103 S.Ct. at 3394 n. 4.
Section 102 of the AEDPA amended 28
U.S.C. § 2253 to require that a
petitioner obtain a COA. See 28 U.S.C. §
2253(c)(1). A COA may be issued only
where the applicant has made a "substantial
showing of the denial of a
constitutional right." 28 U.S.C. §
2253(c)(2). Notwithstanding the slightly
different wording between the pre-AEDPA
and the amended § 2253, we have noted
previously that the AEDPA was intended
to codify the Barefoot standard and thus
that the standard governing the issuance
of a COA requires the same showing as
that for obtaining a CPC. See Drinkard,
97 F.3d at 756. Nonetheless, because
petition was filed with the district
court before April 24, 1996, Lindh
compels that we review his petition for
a CPC under the pre-AEDPA jurisprudence.
the pre-AEDPA standards, state court
findings are entitled to a presumption
of correctness unless, among other
things, the petitioner demonstrates that
the state courts failed to resolve the
claims on the merits. See Livingston
v. Johnson, 107
F.3d 297, 302 (5th Cir.1997). Because
that the state failed so to adjudicate
his claims, we must determine initially
whether a state court has disposed of
on the merits.3
that the state habeas courts' "perfunctory
disposition" is not a resolution on the
merits because, he alleges, the
petitions were denied without an
"and without reference to any factual or
legal issue presented." According to
resolution-on-the-merits prerequisite is
a proxy for the quality of the legal
process of resolving a dispute; the
court's treatment of the petitions must
evince a "careful consideration of the
constitutional claims" and a thorough
and meaningful substantive evaluation of
disagree both with
Green's proffered construction of
the merits inquiry and with his
contention that the state courts did not
adjudicate his habeas claims on the
merits. "Resolution on the merits" is a
term of art in the habeas context that
refers not to the quality of a court's
review of claims, but rather to the
court's disposition of the case--whether
substantive or procedural. See Preston
v. Maggio, 705
F.2d 113, 116 (5th Cir.1983). We must
inquire, on a case-by-case basis,
whether a resolution was on the merits,
considering the following factors: (1)
what the state courts have done in
similar cases; (2) whether the history
of the case suggests that the state
court was aware of any ground for not
adjudicating the case on the merits; and
(3) whether the state courts' opinions
suggest reliance upon procedural grounds
rather than a determination of the
merits. See id.
careful review of the state courts'
opinions denying Green
habeas relief reveals that his claims
were in fact disposed of on the merits.
In denying Green's
first state habeas petition, the Court
of Criminal Appeals acknowledged that he
presented "fourteen (14) allegations in
which he challenges the validity of his
conviction or sentence. The trial court
recommended the relief sought be denied.
This Court has reviewed the record. We
agree with the trial court's
recommendations and accordingly deny
trial court memorandum to which the
Court of Criminal Appeals refers
indicates that the trial court
allegations, the state's reply, the case
record, and the evidence presented by
both parties before determining that
habeas relief be denied. Neither the
trial court's nor the Court of Criminal
Appeals's order makes mention of
procedural grounds for denying relief,
nor has Green
brought any to our attention.
respect to Green's
second habeas petition, the trial court
memorandum, again to which the Court of
Criminal Appeals refers in denying
relief, not only indicates that "[Green's]
assertions in his application for writ
of habeas corpus are without merit," but
specifically excludes any reliance upon
procedural grounds for denying relief.
The trial court concluded expressly (1)
"that it is not barred from ruling upon
the merits of [Green's]
claim by the pendency of [his] motion to
dismiss in Federal District Court" and
(2) that "[Green]
is not procedurally barred from seeking
relief on the merits of his claim." The
Court of Criminal Appeals, after
reviewing the record on its own,
referenced the trial court's memorandum
and "agree[d] with the trial court's
recommendation and, accordingly, denie[d]
all requested habeas corpus relief."
confident, therefore, that
claims were resolved on the merits, as
opposed to having been disposed of on
non-merits-based, procedural grounds;
the presumption of correctness therefore
applies. See Livingston, 107 F.3d at
that his counsel's performance at both
the trial and sentencing phases was
ineffective because, after having
conscripted an expert (Dr. Richard
Rappaport) and considered carefully his
conclusions, they decided not to put on
an insanity defense.
Green argues that his counsel's
reasons for not presenting the defense
are unclear from the record; that the
internal conflict within the defense
team precludes a finding that the
rejection of Rappaport's defense was
trial strategy; and that counsel's
decision was based in part upon an
erroneous interpretation of the law
concerning whether presentation of the
defense would have opened the door to
the cross-examination of Rappaport about
additional incriminating information--namely,
fifteen other murders to which
establish ineffective assistance of
must demonstrate both deficient
performance and prejudice resulting from
that deficiency. See Strickland
466 U.S. 668, 687, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674 (1984). We compare
counsel's performance to an objective
standard of reasonableness, mindful of
the strong presumption of adequacy. We
will not find inadequate representation
merely because, with the benefit of
hindsight, we disagree with counsel's
strategic choices. See id. at 689-90,
104 S.Ct. at 2065-66. "A conscious and
informed decision on trial tactics and
strategy cannot be the basis for
constitutionally ineffective assistance
of counsel unless it is so ill chosen
that it permeates the entire trial with
obvious unfairness." Garland
v. Maggio, 717
F.2d 199, 206 (5th Cir.1983) (on
rehearing). Because an ineffective
assistance claim is a mixed question of
law and fact, we review the district
court's decision de novo. See Salazar
v. Johnson, 96
F.3d 789, 791 (5th Cir.1996). As we
noted above, findings of fact are
entitled to a presumption of correctness.
See Washington, 466 U.S. at 698, 104
S.Ct. at 2070.
Applying the prejudice prong in the
context of counsel's performance at
sentencing, we ask whether the
petitioner has demonstrated "a 'reasonable
probability' that the jury would not
have imposed the death sentence in the
absence of errors by counsel." Carter,
110 F.3d at 1110. Failure to establish
either prong defeats the claim. See
Collins, 958 F.2d 1271, 1278 (5th
Kearney averred that he hired Rappaport
to examine Green
and that, based upon Rappaport's
conclusions that Green
was in fact legally insane at the time
of the Fefferman murder, he intended to
make full use of Rappaport's findings
during the trial and sentencing phases.
After the change of venue, Kearney left
the defense team and was replaced by
Bays, at which time conflicts began to
arise between Johnson and Bays.
According to Johnson, Bays wished to use
Rappaport's testimony to establish that
insanity turned him into a "serial
killer." Believing that such a tactic
would add to the state's showing of "future
dangerousness" during the punishment
phase of the trial, Johnson disagreed
with the decision to place Rappaport on
the stand, and Johnson and Bays
ultimately agreed to abandon the
that the internal wrangling between
Johnson and Bays renders suspect their
decision not to present an insanity
defense. Although the record does
demonstrate that conflict existed,
proffered no evidence tending to prove
that the decision not to place Rappaport
on the stand was infected impermissibly
with whatever personal disagreements
there were. To the contrary, Johnson and
Bays proffered the other valid tactical
reasons we have mentioned.6
assuming arguendo that Johnson and Bays
erred in concluding that Rappaport's
testimony would have opened the door to
additional incriminating evidence, this
error alone does not give rise to a
constitutional ineffectiveness claim.
See Moreno v.
Estelle, 717 F.2d 171, 176 (5th
Cir.1983) (noting that the Sixth
Amendment does not guarantee an accused
"errorless representation"). There is
sufficient evidence demonstrating that
the decision not to proffer an insanity
defense was a "conscious and informed"
tactical one. See Garland, 717 F.2d at
No reasonable jurist would disagree, and
Green has not
made a substantial showing of the denial
of a constitutional right.
reliance on Bouchillon
v. Collins, 907 F.2d 589 (5th
Cir.1990), and Profitt
v. Waldron, 831 F.2d 1245 (5th
Cir.1987), is misplaced. In Bouchillon,
we concluded that counsel was
ineffective in failing to offer an
insanity defense because (1) it was the
only defense available to the defendant;
and (2) although counsel was aware that
the defendant had been committed
previously to mental institutions, he
did not ask for a psychiatric evaluation
or conduct any other investigation. 907
F.2d at 597. We concluded the same in
Profitt after also noting both that the
defendant had only the insanity defense
available to him and that, although
counsel was aware that the defendant had
escaped previously from a mental
institution, counsel failed to
investigate his client's sanity, which
investigation would have revealed that
the defendant had been adjudicated
insane by an Idaho court only months
before the instant trial. See Profitt,
831 F.2d at 1249. Furthermore, we gave
minimal deference to the Profitt
counsel's tactical decision not to
employ the insanity defense, as we could
ascertain no advantage attendant to
abandoning the defense. See id.
only did Green's
counsel investigate fully the
possibility of putting on an insanity
defense (including conscripting
Rappaport to prepare a report based on
extensive interviews with
reviewing the contents of that report),
but they considered various tactical
reasons attendant to their decision to
present or abandon the defense.
Furthermore, the defense was not the
only one available to
Green; his counsel presented a
defense that he lacked the requisite
mens rea to commit the underlying felony.
respect to Green's
claim that he was denied effective
assistance of counsel at the sentencing
phase because his counsel failed to
present the Rappaport findings, we
similarly find no constitutional error.
According to Green,
the decision to forego this testimony
prevented the jury from receiving an
explanation of the nexus between his
mitigating evidence of child abuse,
severe mental illness, and brain damage
and his actions in killing Fefferman.
Johnson indicated, however, that she
believed that the effects of this
evidence on the "future dangerousness"
prong of the Texas capital murder jury
questions would "100% guarantee[ ]" that
receive the death penalty. Furthermore,
the defense did present, through Dr.
Randall Price, evidence of
childhood and mental disorders and their
effects upon his ability to conform his
behavior to acceptable levels.8
Thus, we agree with the district court
that Green has
not made a substantial showing of the
denial of a federal right with respect
to his counsel's decisions not to use
that his counsel were ineffective in
failing to cross-examine Robert Ressler
effectively during the punishment phase
of the trial. Ressler was a state
witness who testified that he had been
involved in the largest survey of serial
murderers ever conducted and that, based
upon this experience, he considered
Green to be an
"organized serial killer."
Although Johnson avers that she had
prepared to cross-examine Ressler, Bays
decided, on the spur of the moment, to
conduct the cross-examination without
having done sufficient investigation or
preparation. Bays did question Ressler
concerning his credentials, his
understanding of Texas law, how
potential affiliations affected his
impartiality, and his understanding of
the connection between abused children
and serial killers.
Green contends that had Ressler
been cross-examined properly, he could
have (1) challenged Ressler's
conclusions that he posed a continuing
risk of future danger, (2) demonstrated
that his research methods were
unreliable and inaccurate, and (3) shown
that Ressler's own writings suggest a
link between the traumatic childhoods of
serial killers and their subsequent
Assuming arguendo that the cross-examination
of Ressler was deficient,
failed to demonstrate "a 'reasonable
probability' that the jury would not
have imposed the death sentence in the
absence of errors by counsel." Carter,
110 F.3d at 1110. First, Ressler
testified during the rebuttal portion of
the punishment phase, at which time the
jury already had heard in detail about
three other similarly-situated murders
to which Green
had confessed. Thus, to the extent that
Ressler testified regarding
has failed to disentangle the effects of
evidence of the other murders from
Ressler's more abstract research-based
testimony. That is, even assuming that
the proffered cross-examination of
Ressler would have destroyed his
credibility with the jury,
Green has not
demonstrated a reasonable probability of
not only did Bays's cross-examination of
Ressler elicit some support for the
defense's primary theory that
behavior was a product of his abusive
childhood, but Green
also had presented Price's testimony to
that effect during the punishment phase,
as well as other corroborative testimony
during the guilt phase. Again,
Green has not
demonstrated sufficiently that eliciting
Ressler's further agreement with the
defense theory would have enhanced, with
sufficient probability, the jury's
acceptance of the defense's underlying
theory. Reasonable jurists would not
find the issue debatable, and therefore
Green has not
made a substantial showing of the denial
of a federal right.
that he was denied his constitutional
right to be present at all phases of his
trial when he was denied access to an ex
parte hearing among his counsel and the
judge, during which the court
entertained Johnson's oral motion to
withdraw from representation.
that his absence from the hearing does
not infringe upon his confrontation
right but argues that it offends his due
process right to a fair trial.
defendant has a right to be present at a
proceeding "whenever his presence has a
relation, reasonably substantial, to the
fulness of his opportunity to defend
against the charge." United States
v. Gagnon, 470
U.S. 522, 526, 105 S.Ct. 1482, 1484, 84
L.Ed.2d 486 (1985) (per curiam) (quoting
Massachusetts, 291 U.S. 97, 105-06, 54
S.Ct. 330, 332, 78 L.Ed. 674 (1934)).
His absence from such a proceeding
amounts to a due process violation only
"to the extent that a fair and just
hearing would be thwarted by his absence,
and to that extent only." Snyder, 291
U.S. at 108, 54 S.Ct. at 333.
oral motion to withdraw was made and
discussed during an ex parte conference
in chambers (in the course of jury voir
dire) and centered on disagreements
between Johnson and Bays. According to
Johnson's affidavit, her relationship
with Bays had deteriorated to the point
that they no longer conferred directly
regarding the case, but rather
communicated through Houp only. Johnson
expressed her frustrations regarding
this situation to the court and
requested that she be permitted to
withdraw from representation. The court
denied the motion, and, although stating
that it would keep the motion under
advisement in the event that the working
relationship continued to worsen, the
matter was not raised again.
protests that he was prejudiced by his
exclusion from the meeting, we fail to
see how his absence thwarted the
fairness and just treatment of the
issues at the ex parte communication or
with respect to his overall
contends that had he been present, "he
could have provided the trial court with
important information about the conflict
that would have effected [sic] the
court's ruling." But,
Green does not give us the
contents of such information or the
effect it would have had on the ruling.
Furthermore, we reject
Green's suggestion that his
absence from this meeting prevented him
from becoming aware of any disputes
between his counsel and thus from
exercising his right either to take over
his own defense or to request new
counsel. Not only did Johnson admit in
her affidavit that "the animosity
between Mr. Bays and me was clear to
everyone in the courtroom," thus calling
into question Green's
protested ignorance, but we also do not
has made a substantial showing that he
was denied effective assistance because
of his inability personally to request a
change of counsel that the court denied
upon request from Johnson. See Bass
v. Estelle, 696
F.2d 1154, 1158-59 (5th Cir.1983).
further that the failure of his counsel
on direct appeal to raise the issue of
his absence from this hearing denied him
the effective assistance of counsel on
direct appeal. To this end,
upon TEX.CODE CRIM. PROC. ANN. art.
33.03 (Vernon 1986) and Adanandus
v. Texas, 866
S.W.2d 210, 216-19 (Tex.Crim.App.1993).
Assuming arguendo that
Green's absence from the meeting
ran afoul of art. 33.03, Adanandus
counsels that harmless error analysis
applies to the statutory violation. See
id. at 219. Adanandus instructs further
that the harmless error analysis is
informed by the Snyder "reasonably
substantial relationship" test. Thus,
because we reject
Green's Snyder claim with respect
to his absence from the hearing, we
conclude similarly that any error of his
counsel on direct appeal was harmless.
that his direct appellate counsel's
failure to raise the issue of the
exclusion for cause of veniremember
Harren deprived him of effective
assistance. At trial,
Green's attorney objected to the
exclusion of Harren, arguing that it is
impermissible to grant a challenge for
cause where a juror is unable to answer
affirmatively the second special issue
on the facts of the capital offense
alone. The trial court correctly
motion, relying upon Marras
v. Texas, 741
S.W.2d 395 (Tex.Crim.App.1987) (en banc).
time of Green's
appeal, Marras was the controlling
precedent, and Green's
appellate counsel therefore decided not
to raise Harren's exclusion for cause on
direct appeal. The Court of Criminal
Appeals affirmed Green's
conviction on December 9, 1992, and his
motion for rehearing, filed on December
13, was denied on February 12, 1993. On
January 13, 1993, the Court of Criminal
Appeals decided Garrett
v. Texas, 851
S.W.2d 853 (Tex.Crim.App.1993) (en banc),
overruled Marras, and held that a
veniremember is not subject to a
challenge for cause merely because he
indicates that he would require more
evidence than the legal minimum in order
to answer special issue two
affirmatively. 851 S.W.2d at 860-61.
Garrett did not become final and binding
on lower courts until rehearing was
denied on April 21, 1993. See Thorpe
v. Texas, 863
S.W.2d 739, 741 n. 5 (Tex.Crim.App.1993)
Green does not
dispute that Marras governed his appeal
but contends that his appellate counsel
was deficient for failing to raise the
Marras issue both on his original appeal
and during the pendency of
rehearing petition, but before Garrett
became final. With respect to the former
claim that Green's
counsel should have raised the Marras
issue on his original appeal, we have
noted previously that there is no
general duty on the part of defense
counsel to anticipate changes in the law,
see Nelson v.
Estelle, 642 F.2d 903, 908 (5th Cir.
Unit A Apr.1981), and that counsel is
not ineffective for failing to raise a
claim that Texas courts have rejected
repeatedly. See Andrews
v. Collins, 21
F.3d 612, 623 (5th Cir.1994). Because it
is undisputed that Marras was
controlling authority at the time of
original appeal, Green
has not made a substantial showing that
his appellate counsel's failure to raise
the Marras issue in the original appeal
denied him effective assistance.
also reject Green's
ineffectiveness claim stemming from
counsel's failure to assert Garrett
during the pendency of his rehearing
petition, but two months before Garrett
became final. Counsel is not deficient
for failing to raise every meritorious
claim that may be pressed on appeal. See
Lynaugh, 873 F.2d 830, 840 (5th
only record evidence submitted by
Green on this
issue is an affidavit by Burns, one of
appellate counsel, stating, "I reviewed
the record and identified what is now
known as Garrett error. I also noted
that the error was properly preserved.
Neither my co-counsel, Suzie Johnson,
nor I raised the issue on appeal." Given
that Garrett was not yet final and that
Burns and Johnson had identified the
issue as one they did not wish to press
on appeal, their performance was not
constitutionally deficient. See
Washington, 466 U.S. at 688-94, 104 S.Ct.
that the trial court erred in failing to
admit the testimony of Dr. John Marquart
during the punishment phase. Marquart
testified on voir dire that he had
conducted a study of capital prisoners
whose sentences had been commuted, in
which he compared those prisoners to
murderers who had received life
imprisonment. His comparisons revealed
that many of the prisoners whom juries
had found to pose a threat of future
dangerousness (special issue two) in
fact posed no such threat. As a result,
Marquart concluded that it is difficult,
if not impossible, to determine whether
a particular defendant poses a direct
threat of future danger. Marquart opined
further that he did not believe that the
death penalty deterred crime; that
studies indicated that a short-term
increase in crime accompanies an
execution; and that there is little
correlation between the operation of the
death penalty and the number of
homicides in Texas.
sentencer in a capital case must be
permitted to consider any
constitutionally relevant mitigating
evidence, see Eddings
v. Oklahoma, 455 U.S. 104, 112,
102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982),
which is evidence "directly related to
the personal culpability of the criminal
defendant," Penry v.
Lynaugh, 492 U.S. 302, 319, 109 S.Ct.
2934, 2947, 106 L.Ed.2d 256 (1989). "Only
then can we be sure that the sentencer
has treated the defendant as a 'uniquely
individual human bein[g]' and has made a
reliable determination that death is the
appropriate sentence." Id. (quoting
North Carolina, 428 U.S. 280, 304-05, 96
S.Ct. 2978, 2991-92, 49 L.Ed.2d 944
(1976)). It is error to exclude evidence
opining that the defendant would not
commit acts of violence in the future.
See Robinson v.
Texas, 548 S.W.2d 63, 66 (Tex.Crim.App.1977)
state court determined on direct appeal
that, because Marquart's proffered
testimony related only to a generalized
critique of the accuracy of the future
dangerousness prediction, and not to
future dangerousness or to
individualized assessment of punishment,
it was properly excluded. We do not
believe that the state court's factual
findings were clearly erroneous, nor do
we find any legal error.
failed to make a substantial showing of
the denial of a federal right.
Accordingly, we DENY a CPC and VACATE
the stay of execution.