James Lee Clark #1070

James Lee Clark

Executed April 11, 2007 06:17 p.m. CST by Lethal Injection in Texas

13th murderer executed in U.S. in 2007
1070th murderer executed in U.S. since 1976
12th murderer executed in Texas in 2007
391st murderer executed in Texas since 1976

Since 1976 Date of Execution State Method Murderer
(Race/Sex/Age at Murder-Execution) Date of
Birth Victim(s)
(Race/Sex/Age at Murder) Date of
Murder Method of
Murder Relationship
to Murderer Date of
Sentence

1070 04-11-07 TX Lethal Injection James Lee Clark
W / M / 25 - 38
05-13-68 Shari Catherine Crews
W / F / 17
06-07-93 Shotgun None 05-03-94

Summary:
Clark and accomplice James Richard Brown found teenagers Shari Catherine Crews and Jesus Garza at Clear Creek north of Denton. Both Clark and Brown were released from prison less than two weeks earlier. They had a rifle and a shotgun they had stolen from vehicles, and they were looking for someone to rob that night. DNA evidence showed Clark raped Crews several times before shooting her in the back of the head with a shotgun and pushing her body into the creek. He put the shotgun under Garza’s chin and fired, then tossed his body into the creek. The bodies were discovered the next day after Clark and Brown showed up at a convenience store covered in sand, and Brown with a shotgun wound to his leg. Both eventually admitted being at Clear Creek, blaming the other for the murders. The stock of the murder weapon and ammunition was found in Clark's home. Accomplice Brown was also tried for capital murder but a jury convicted him of robbery and sentenced him to 20 years.

Citations:
Ex parte Clark, Not Reported in S.W.3d, 2004 WL 885583 (Tex.Cr.App. 2004) (State Habeas).
Clark v. Johnson, 227 F.3d 273 (5th Cir. 2000) (Federal Habeas).
Clark v. Quarterman, 457 F.3d 441 (5th Cir. 2006) (Federal Habeas).

Final/Special Meal:
None.

Final Words:
Clark was asked if he had a last statement to make. “Uh, I don’t know,” he said with a nervous chuckle. “Um, I don’t know what to say. I don’t know …” Clark then turned and appeared to see the witnesses behind the glass. “I didn’t know anybody was there,” he said with another laugh. “Howdy.” With that, he made a noise like a gurgle and was still.

Internet Sources:

Texas Department of Criminal Justice - Executed Offenders (James Lee Clark)

Inmate: Clark, James Lee
Date of Birth: 5/13/68
TDCJ#: 999095
Date Received: 5/4/94
Education: 9 years
Occupation: Plumber’s Helper
Date of Offense: 6/7/93
County of Offense: Denton
Native County: Caddo Parish Louisiana
Race: White
Gender: Male
Hair Color: Brown
Eye Color: Brown
Height: 05' 09"
Weight: 157 lb
Prior Prison Record: Sentenced to ten years for burglary in Dallas County. Paroled 5/26/1992.

Texas Attorney General

Monday, April 9, 2007 - Media Advisory: James Clark Scheduled For Execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about James Lee Clark, who is scheduled to be executed after 6 p.m. Wednesday, April 11, 2007. Clark was sentenced to death for the 1993 Denton County rape, robbery and murder of 17-year-old high school student Shari Catherine Crews.

FACTS OF THE CRIME
On June 7, 1993, the bodies of Shari Crews and 16-year-old Jesus Gilberto Garza, a classmate and acquaintance, were found in Clear Creek north of Denton. Both had been robbed and shot in the head the night of June 7, 1993.

Denton County law enforcement officers pulled Crews’ nude body from the water. Crews had a pair of shorts around her neck and her bra tied around her wrist. Marks on her other wrist indicated that she had been bound. The medical examiner later verified that Crews had been sexually assaulted and died from a shotgun blast to the back of the head. Further evidence revealed that rings Crews normally wore were missing along with keys she usually carried with her, as well as keys that she kept in the glove compartment of her car.

Earlier that same morning, paramedics and police officers were dispatched to a service station in response to a gunshot victim. Officers arrived to find James Lee Clark and James Brown, who was suffering from a gunshot wound to the leg. Both Clark and Brown told the officers that they had been fishing at the Three Rivers Bridge in Denton County when Brown was accosted by a robber and shot in the leg. However, when Clark led the police to the area where this shooting allegedly took place, there was no sign that the men had been there fishing or that someone had been shot. After Clark gave the police several conflicting statements, and the police further talked with Brown and other witnesses, the police returned to the creek to look for a second body and two weapons.

Later that day, the body of 16-year-old Jesus Garza, who had apparently been at the creek with Crews, was pulled from the water. Garza also died from a shotgun blast to the head which had been fired from fairly close range. The police also recovered a .22 rifle with the stock sawed off from the water, and a .12 gauge shotgun, which was later determined to be the murder weapon.

DNA evidence taken from Crews’ body was compared with a sample provided by Clark and proved Clark sexually assaulted Crews. Blood found on Clark’s tennis shoes was shown to be consistent with a mixture of Crews’ and Garza’s blood. Additionally, a search of Clark’s trailer yielded the sawed-off rifle stock, which was found to match the .22 rifle found in the creek, and ammunition for the rifle. Evidence was also presented that, a day or two prior to the murders, Clark, accompanied by Brown, bought ammunition for the .12 gauge shotgun.

PROCEDURAL HISTORY

On April 29, 1994 a Denton County jury found James Clark guilty of capital murder in the death of Shari Crews, and on May 3, 1994, the trial court sentenced Clark to death.

On Oct. 2, 1996, the Texas Court of Criminal Appeals affirmed Clark’s conviction and sentence . On Oct. 6, 1997, Clark filed a post-conviction application for writ of habeas corpus, presenting eleven challenges to the validity of his conviction and sentencing. On April 8, 1998, the trial judge adopted the State’s findings of fact and conclusions of law and recommended that relief be denied. On July 8, 1998, the Texas Court of Criminal Appeals adopted these findings and denied relief.

On September 30, 1998, Clark filed a federal petition for writ of habeas corpus. On November 10, 1999, the magistrate court entered findings recommending that the petition for writ of habeas corpus be denied. On Dec. 13, 1999, the district court adopted these findings, and denied Clark’s petition for federal writ of habeas corpus. On Jan. 28, 2000, the district court denied Clark’s request for a certificate of appealability (COA), and on March 3, 2000, the district court denied Clark’s motion for reconsideration.

On Sept. 12, 2000, Clark’s application for COA in the Fifth Circuit Court of Appeals was denied. On Feb. 20, 2001, the U.S. Supreme Court denied Clark’s petition for writ of certiorari. The trial court set an execution date for November 21, 2002. However, on November 11, 2002, Clark filed a subsequent application for writ of habeas corpus in the state court, raising seven allegations for relief. On November 18, 2002, the Texas Court of Criminal Appeals concluded that Clark’s allegation of mental retardation pursuant to Atkins v. Virginia deserved consideration. The court issued a stay of execution and remanded the case to the trial court for consideration of the claim.

An evidentiary hearing was held in the trial court, after which (and based on findings of the trial court) the Texas Court of Criminal Appeals concluded that Clark failed to show, by a preponderance of the evidence, that he was mentally retarded and thus exempt from the death penalty under Atkins. Ex parte Clark. The trial court reset Clark’s execution date for April 27, 2004. However, on April 23, 2004, the 5th U.S. Circuit Court of Appeals granted Clark’s motion to file a successive habeas petition in federal district court and stayed his execution.

On January 20, 2005, the district court rendered final judgment denying the successive habeas corpus petition. On March 16, 2005, the district court granted Clark’s application for a certificate of appealability.

On July 20, 2006, the 5th Circuit Court affirmed the judgment of the district court and denied habeas relief. On Aug. 29, 2006, the court denied Clark’s petition for rehearing. On Feb. 26, 2007, the Supreme Court denied Clark’s petition for writ of certiorari. The trial court reset his execution date for April 11, 2007.

PRIOR CRIMINAL HISTORY

On June 28, 1991, Clark pled guilty to theft by a check and was confined to the county jail for 20 days, fined, and ordered to pay restitution.

On Oct. 18, 1989, Clark was convicted and incarcerated in state prison for the felony offense of burglary of a building.

On July 12, 1987, Clark was arrested for auto theft. It does not appear from the record that Clark was ever convicted of this offense.

The State presented evidence of two burglaries of motor vehicles committed in the days prior to the capital murder of Shari Crews.

Denton Record Chronicle

"Killer to reap what he sowed; Clark scheduled to be executed today for 1993 murder," by Donna Fielder. (April 11, 2007)

Denton County Sheriff’s Cpl. Virginia Nichols walked as close to the edge of the white sandy beach as she could that June evening in 1993 and looked at the fallen tree lying across Clear Creek. The slender body of a girl was floating there, tangled in the branches.

Nichols was the first officer on the scene of a reported deceased person. Officers from several agencies soon joined her as word spread of the horrific crime committed just off FM428 north of Denton. “She just had her arms wrapped around that log. Her hair was flowing all around. You couldn’t see the wounds in the back of her head, and I thought she must have drowned,” Nichols said. “We brought her over to the beach, and I noticed her bra was tied around one arm. When we turned her over, we all stepped back and gasped. Nobody said a word for what seemed like an eternity. I told them, ‘OK, we have a homicide here; we need more people.’”

The discovery of the body of Shari Catherine “Cari” Crews, 17, a look of abject horror frozen on her beautiful face around the exit wound of a load of buckshot, was the first step in the process of justice for James Lee Clark Jr., convicted of raping and murdering her and also accused of shooting to death her friend, Jesus Garza, 16.

Clark is scheduled to take the final steps in the justice process today on his way to the execution chamber in the Walls Unit in Huntsville.

With his appeal rejected by the U.S. Supreme Court, Clark has little hope of avoiding death by lethal injection, save for a commutation to a life sentence by Gov. Rick Perry. Clark declined an interview for this story and his attorney, James Rasmussen, could not be reached for comment.

A gleaming tribute
The June 7, 1993, murders at Clear Creek off FM428 north of Denton horrified area residents, and law enforcement officers who worked the case say it is one they will never forget. Nichols, now a detective with the Denton Police Department, said the awful handiwork of James Lee Clark Jr. haunts her still. “I’m glad he’s finally getting his time to die,” Nichols said. “It’s been too long coming.” Cari Crews was a popular junior at Ryan High School. She was a straight-A student and excelled at piano. She volunteered with the Denton Humane Society and had been elected president of the campus chapter of Amnesty International for her coming senior year.

Jesus Garza
Jesus Garza was an athlete who played both football and baseball for Ryan as a sophomore. He was interested in art, and the two met in an art class the semester before they died. According to court documents, Clark was born in Caddo Parish, La. His biological father vanished the day he found out Clark’s mother was pregnant. Clark told a psychologist hired for an appeals hearing that he drank his first beer when he was 7 years old and that by 13, he was frequently drunk. He was regularly smoking pot by the time he was 13 or 14, according to testimony.

He mowed lawns to obtain money to buy marijuana. He admitted to the psychologist that he also huffed paint and gasoline and sometimes used methamphetamine and cocaine when he could get the money to buy them. One of his favorite types of buildings to burglarize, he said during that interview, was a church, because churches were empty for long periods of time and often contained cash from the last offering.

James Lee Clark
Clark repeated two grades before dropping out of formal education in the ninth grade, according to records. At 15, he was sent to the Gainesville State School, a state reformatory for boys and girls, for theft. After his release at 18, his mother would have nothing more to do with him, according to the court records. Later he went to prison on burglary charges, and that’s where he met James Richard Brown.

Brown grew up in Carrollton and also was incarcerated for burglary when the two men met. After their releases, both came to live in a decrepit trailer at a mobile home park in Aubrey. The two had stolen a shotgun and a rifle in vehicle burglaries and were looking for someone to rob when they came across the teens at Clear Creek that night. The part of Clear Creek that runs along FM428 north of Denton was a popular teen hangout at the time. The two teens drove there about midnight and were accosted by Clark, who was 25, and Brown, who was 22. Brown later was convicted of robbery for his part in the crime and sentenced to 20 years.

Denton police were involved first. Clark and Brown arrived at a Denton convenience store in the early morning hours looking for medical help. Brown’s leg had almost been severed above the knee by a shotgun blast, and he was in danger of bleeding to death. Denton Detective Margaret Yarbrough didn’t believe the shaggy, dirty fellows’ story of being robbed and alerted other officers that the men likely had committed some crime themselves. Later that day, both teens’ mothers reported them missing in Denton, and officers were working to find them when the bodies were discovered.

Sheriff Benny Parkey was a Denton police detective at that time. He was intimately involved in the case, interviewing Brown in the hospital and assisting with Clark’s arrest at a trailer in Aubrey. Parkey said it is time that justice is done for the teens who were terrorized before being shot in the head and thrown in the creek. “The execution by lethal injection is much more humane than the inhumanities these kids suffered that night,” Parkey said.

That part of Clear Creek is in unincorporated Denton County, so the murder cases were the responsibility of the sheriff’s office. Investigator Danny Brown was lead investigator for the sheriff’s office, but Texas Ranger Kyle Dean soon became case manager. Danny Brown said he and Dean didn’t sleep for days as the case quickly unfolded and they hustled to get arrest and search warrants swiftly but with such accuracy they would stand up under scrutiny in court.

White sand from the creek side covered both ex-convicts, tying them to the murders, and James Richard Brown began talking to detectives from his hospital bed. He told them there was a second body under the waters of Clear Creek, and Garza was pulled from the creek about midnight. Investigator Danny Brown has not worked a case before or since that affected him as much, he said. He shot many of the crime scene photos of the dead teens, and he will never forget their faces. “Those were the hardest pictures I’ve ever taken,” he said.

The autopsy report showed Cari’s tear ducts were swollen from hours of crying before her death, he said. “I feel that two kids never got to know their lives. They were never given that opportunity,” he said. “Clark and Brown have made their own destinies.”

Dean was a new Ranger who had just been transferred to Denton. This was his first major case, and he still remembers it vividly. “It still is one of the most brutal I’ve seen,” Dean said. “I’m glad to see some resolution to it after all these years. This execution is proper under the laws of Texas. I hope it provides some closure for their families.”

DRC/Donna Fielder
James Richard Brown talks to a reporter in 2006 at the Wynn Unit in Huntsville, where he is serving a 20-year sentence. A jury in his capital murder case in the death of Jesus Garza instead found him guilty of robbery. Brown still could face capital murder charges in the death of Cari Crews. The night after the teens were found, Dean, Parkey, Nichols, Deputy Scott Haney and several other officers drove to the trailer James Lee Clark and James Richard Brown shared in Aubrey. They pried open the door and rushed inside, guns drawn.

Nichols will never forget her first sight of Clark. He had barricaded the hallway with a table. “I remember Haney went in and there was a table in the way. He shoved it out of the way, and Clark was there and he reached for a knife. Haney had his MP-5 trained on him,” she said. “Clark dropped the knife.” The officers read Clark his rights and handcuffed him. They put paper bags on his hands to preserve any evidence such as possible gunshot residue. “I remember he had on tiger-striped bikini underwear. We took him to jail like that,” Nichols remembers. “All the neighbors were standing around in the yard watching when we took him away. He was public enemy No. 1.”

In the end, Brown and Clark both admitted to being at Clear Creek that night. They told evolving stories that started with the lie of watching Garza shoot Crews and ended with similar tales of the murders. The difference was each said the other one did the shooting. Both were charged with capital murder. Clark was convicted and sentenced to death for Crews’ murder in 1994. He never was tried for Garza’s death. Brown’s trial for Garza’s murder was delayed because of his injured leg, which he said happened because he tried to keep Clark from committing the murders.

Brown looked young and defenseless as he sat at the defense table in a wheelchair. All of his taped statements professed his sorrow at the murders and his attempts to stop them. Jurors found him guilty of robbery and sentenced him to 20 years. He has been eligible for parole twice but the parole board has denied it.

Brown said in a prison interview in March 2006 that he expects to serve every day of his sentence. He understands why the victims’ family members were upset that he wasn’t convicted of murder, he said in the interview. He is sorry that his actions caused so much suffering, he said, still insisting that Clark shot him because he tried to stop the murders.

Brown could still be tried for Crews’ death. He has nightmares about execution, he said. “I dream,” Brown said. “I dream about that night. But more, I dream of being executed. I dream about it in great detail. I dream about the gurney and being tied down. I dream about the needle. I dream about dying.”

Clark’s trial took three months in 1994. Sheriff’s Sgt. Roger Dunham was assigned to transport Clark back and forth to trial and his jail cell. After he was found guilty and Judge Sam Houston pronounced the death sentence, Dunham took Clark back to the holding cell behind the courtroom. “While I was unlocking the cage door, I noticed him getting weak in the knees,” Dunham said. “I helped him into the cell and onto the bench in there, and then I slammed the door shut and opened the little window. I watched him to make sure he didn’t try to hurt himself. I could hear him crying. It was the first emotion I’d seen in him in the 17 weeks I’d been with him. He was a dead man walking. He’d come to the realization that this thing was really going to happen.”

Denton County was done with Clark that night. Dunham left for Huntsville with him at 2 a.m. the next day. When he reached the prison, the guards shackled Clark and led him into the building. “Two buses from Houston had just arrived and there must have been 150 guys in different stages of getting booked in,” he said. “A lot of them were buck naked. The guards said, ‘Death row inmate. Everybody face the wall.’ And every man in there turned his back on Clark and he walked down that long hall with a guard on each side of him. I’ll always remember he got part of the way down the hall and he turned around, twisted around all bent over and raised his shackled hands and waved at me. I thought, he’ll never leave this place alive.”

Dunham, now retired in Arkansas, returned two years ago to testify in a hearing to determine whether Clark was too mentally retarded to understand why he was being put to death after a Supreme Court decision in another case made that an issue. Dunham testified that Clark was not retarded, that he took notes during his trial and directed his defense attorneys in what he wanted them to do.

Judge Lee Gabriel ruled that Clark was fit for execution, and state and federal appeals courts have upheld that ruling. Dunham said it’s time justice was done for Cari Crews and Jesus Garza. “I’m happy that he finally is getting what is due him,” Dunham said. “He can meet his maker and explain it to him.”

Denton Record-Chronicle

"Clark ends life without apology; Witnesses watch convicted murderer receive lethal injection," by Donna Fielder. (April 12, 2007)

HUNTSVILLE — James Lee Clark Jr.’s life ended with a chuckle and a gurgle at 6:17 p.m. Wednesday, as he tried to make up his mind whether he wanted to make a last statement.

Clark, already strapped down to a gurney when the witnesses arrived, blinked and smiled when the prison warden, Charles O’Reilly, asked if he had a last statement to make. “Uh, I don’t know,” he said with a nervous chuckle. “Um, I don’t know what to say. I don’t know …”

Clark then turned and appeared to see the witnesses behind the glass. “I didn’t know anybody was there,” he said with another laugh. “Howdy.” With that, he made a noise like a gurgle and was still. It had taken seven minutes for the three drugs administered in a lethal injection to take effect.

Garza’s mother, Linda Garza, an uncle and one of his sisters watched calmly as they stood close to the glass. Afterward, they were quickly led away by guards and did not comment on the execution.

Though Clark technically was executed for Crews’ rape and murder, and he never was tried for the killing of Jesus Garza, 16, the Garza family have said they wanted to feel the closure of seeing him face his punishment. Clark was the 12th person to be executed so far this year in Texas.

Clark and his friend James Richard Brown found the teens at Clear Creek off FM428 north of Denton on June 7, 1993. They had a rifle and a shotgun they had stolen from vehicles, and they were looking for someone to rob that night, according to testimony at the trial. DNA evidence showed Clark raped Crews, 17, several times before shooting her in the back of the head and pushing her body into the creek. He put the shotgun under Garza’s chin and fired, then tossed his body into the creek, according to court testimony.

The next afternoon a group of teens found Crews’ body floating in the creek, tangled in the branches of a fallen tree. Brown, who was shot in the leg during the crimes, told police that another body lay under the water’s surface. Brown was tried for capital murder but a jury convicted him of robbery and sentenced him to 20 years. He is incarcerated in the Wynn Unit in Huntsville, a few miles from the Walls Unit where Clark died.

Former Denton County District Attorney Bruce Isaacks and former prosecutor Vicki Foster, who tried Clark, witnessed the execution. Both said afterward that the death was too easy as penance for what Clark had done. “I was surprised at how clean, sterile and humane that process was,” Isaacks said. “It was an easy way out for someone who committed such horrendous crimes.”

Foster said that after all these years, she was glad to be able to witness the final chapter in the ugly story that was Clark’s life. “I wanted to have an end to it,” Foster said.

Isaacks said Crews’ parents didn’t witness the execution because they didn’t want to make her killer that important. He said the Garzas told him they were glad to see some resolution to the grief he caused them. “I’m surprised that he didn’t have the decency to tell the mothers that he was sorry for all he put them through,” Isaacks said. “He is the poster child for the death penalty.”

Houston Chronicle

"Killer of Denton high school girl executed," by Michael Graczyk. (Associated Press April 11, 2007, 8:28PM)

HUNTSVILLE — Convicted killer James Lee Clark was executed today for the rape-slaying of a Denton high school honors student just days after Clark was paroled from prison almost 14 years ago. When asked by the warden if he had a final statement, "I don't know," Clark said with a chuckle. "I don't know what to say." Several seconds passed and Clark noticed witnesses watching him through a nearby window and blurted out, "Oh I didn't know anybody was there. Howdy." The drugs were taking effect and he was unable to say anything more.

Clark's father-in-law, who was among the witnesses, managed to reply "Howdy" as Clark gasped. "He didn't know we were here," Irene Wilcox, Clark's spiritual adviser, said. "He didn't act like he was scared." He was pronounced dead at 6:17 p.m., seven minutes after the lethal chemicals began to flow into his veins. Clark, 38, was the 12th condemned prisoner executed this year in Texas, which has accounted for all but one of all the nation's executions in 2007.

Attorneys went to the U.S. Supreme Court to try to block the lethal injection, arguing instructions to the jury that convicted him and decided he should die for the June 1993 killing of Shari Catherine "Cari" Crews may have been improper. Clark's lawyer, James Rasmussen, also questioned the decision by Clark's trial attorneys not to present evidence at the punishment phase of his trial. The high court turned down the appeal about two hours before his scheduled execution time.

Capital punishment opponents said Clark, who dropped out after the ninth grade, should be spared from execution because he may be mentally retarded and ineligible for the death penalty under a Supreme Court ruling. But state and federal courts, including the Supreme Court earlier this year, rejected appeals that argued Clark was mentally retarded and instead backed prosecutors' contentions Clark deliberately performed poorly on IQ tests. Three years ago, Clark came within four days of execution before he won a reprieve from a federal appeals court so questions about the mental retardation claims could be resolved.

"I was surprised at how clean, sterile, peaceful and humane that process was," Bruce Isaacks, the former Denton County district attorney who prosecuted Clark, said after watching the execution. "It certainly seemed like the easy way out for somebody that committed two violent, horrific murders."

Clark already had a stint in the Texas Youth Commission for juvenile problems, an auto theft arrest and convictions for burglary and theft by check when he was sent to prison in 1992 with a 10-year term for burglary. In an era of crowded Texas prisons, Clark won a parole after serving only 10 months. "He shouldn't have been out," Isaacks said. "The parole board knew that."

Evidence showed within days of their parole, Clark and Brown, who were violating parole rules by living together, stole a shotgun and rifle in burglaries. The shotgun was the murder weapon. Brown somehow also was wounded with a shotgun blast to his knee during the attack. Clark called Denton police from a convenience store to report he and Brown had been robbed and Brown shot while they were fishing. Skeptical officers questioned the pair and allowed Clark to go home as Brown went to a hospital. When the two teenagers were found dead the next day, Clark and Brown soon were arrested.

Brown, now serving a 20-year prison sentence for robbery, blamed the fatal shootings on Clark. Clark blamed them on Brown. DNA evidence tied Clark to Crews' rape and shooting. He was charged but never tried for Garza's death. The shotgun and a sawed-off .22-caliber rifle were recovered near the murder scene. The sawed-off stock of the rifle was found in Clark's trailer home. Evidence also showed the pair bought ammunition for the shotgun.

Scheduled to die next is Ryan Dickson, 30, set for lethal injection April 26 for the slayings of an Amarillo couple during a robbery of their grocery store more than 12 years ago.

Dallas Morning News

"Convicted killer of Denton student executed." (Associated Press 06:39 PM CDT on Wednesday, April 11, 2007)

HUNTSVILLE, Texas – Convicted killer James Lee Clark was executed Wednesday evening for the rape-slaying of a Denton high school honors student just days after Clark was paroled from prison almost 14 years ago. When asked by the warden if he had a final statement, "I don't know," Clark said with a chuckle. "I don't know what to say." James Lee Clark Several seconds passed and Clark noticed witnesses watching him through a nearby window and blurted out, "Oh I didn't know anybody was there. Howdy." The drugs were taking effect and he was unable to say anything more.

Clark, 38, was the 12th condemned prisoner executed this year in Texas, which has accounted for all but one of all the nation's executions in 2007.

Three years ago, Clark came within four days of execution before he won a reprieve from a federal appeals court so questions about the mental retardation claims could be resolved. "Just ludicrous," Bruce Isaacks, the former Denton County district attorney who prosecuted Clark, said of the mental retardation claims. "He suddenly got mentally retarded two weeks before."

Some two weeks later, Clark and another paroled burglar, James Brown, were under arrest for the killings of Crews, 17, and a 16-year-old classmate, Jesus Garza. The teenagers' bodies were found in a creek north of Denton, just north of Dallas. Crews had been raped. Both victims were shot in the head with a shotgun. Evidence showed within days of their parole, Clark and Brown, who were violating parole rules by living together, stole a shotgun and rifle in burglaries. The shotgun was the murder weapon.

Brown somehow also was wounded with a shotgun blast to his knee during the attack. Clark called Denton police from a convenience store to report he and Brown had been robbed and Brown shot while they were fishing. Skeptical officers questioned the pair and allowed Clark to go home as Brown went to a hospital. When the two teenagers were found dead the next day, Clark and Brown soon were arrested.

The shotgun and a sawed-off .22-caliber rifle were recovered near the murder scene. The sawed-off stock of the rifle was found in Clark's trailer home. Evidence also showed the pair bought ammunition for the shotgun.

Scheduled to die next is Ryan Dickson, 30, set for lethal injection April 26 for the slayings of an Amarillo couple during a robbery of their grocery store more than 12 years ago.

Reuters News

"Texas executes man for murder, rape of teen." (Thu Apr 12, 2007 1:39AM EDT)

DALLAS (Reuters) - Texas executed a man by lethal injection on Wednesday for the 1993 rape and murder of a 17-year-old girl.

The Texas Coalition to Abolish the Death Penalty said James Lee Clark's execution was the 152nd in Texas since Rick Perry became governor in December 2000, tying the record set by his predecessor, U.S. President George W. Bush.

Texas leads all states with 391 executions since it resumed the practice in 1982, six years after the U.S. Supreme Court lifted a capital punishment ban. Clark was the 12th convict put to death in the state this year.

So far this year, only one execution in the United States has occurred outside Texas -- in neighboring Oklahoma -- as the lethal injection method comes under scrutiny amid growing concerns it is not as humane or painless as originally thought.

Clark, 38, was condemned for the June 1993 robbery, rape and murder of high school student Shari Crews in Denton just north of Dallas, who was shot to death after being sexually assaulted. "I don't know what to say," Clark said in his last statement. He made no last meal request.

He was executed at the state's death chamber in Huntsville, north of Houston.

Huntsville Item

"Denton County man executed for killing two," by Robbie Byrd. (April 11, 2007 11:50 pm)

A Denton County man was executed Wednesday night for his part in the rape and murder of a 17-year-old high school honors student and the murder of her 16-year-old classmate, only days after he had been released on parole. James Lee Clark, a 38 year-old white male, was pronounced dead at 6:17 p.m., seven minutes after the lethal injection cocktail began to flow.

Clark had been paroled less than a week when he and fellow parolee James Brown were arrested in the murders of Shari Catherine Crews and Jesus Garza. Brown was convicted of robbery and sentenced to 20 years for the June 1993 incident.

When asked to make a final statement, Clark slightly chuckled and said: “Uh, I don’t know... Um, I don’t know what to say. I don’t know.” Nealy a full minute passed before Clark turned to his side to see his father-in-law, Hugo Knobloch, and spiritual advisor, Irene Wilcox, peering through the glass in the viewing room. “Oh, I didn’t know anybody was there,” Clark said just before coughing. “Howdy.”

Knobloch replied “howdy,” but it is unclear whether Clark heard him as he began coughing loudly and slipped into unconciousness. “He didn’t know we were here,” Wilcox said to Knobloch after Clark was pronounced dead. “He didn’t act like he was scared.”

Clark, 38, was the 12th condemned prisoner executed this year in Texas, which has accounted for all but one of all the nation’s executions in 2007.

Attorneys went to the U.S. Supreme Court to try to block the lethal injection, arguing instructions to the jury that convicted him and decided he should die for the killing Crews may have been improper. Clark’s lawyer, James Rasmussen, also questioned the decision by Clark’s trial attorneys not to present evidence at the punishment phase of his trial. The high court turned down the appeal about two hours before his scheduled execution time.

Capital punishment opponents said Clark, who dropped out after the ninth grade, should be spared from execution because he may be mentally retarded and ineligible for the death penalty under a Supreme Court ruling. But state and federal courts, including the Supreme Court earlier this year, rejected appeals that argued Clark was mentally retarded and instead backed prosecutors’ contentions Clark deliberately performed poorly on IQ tests.

Three years ago, Clark came within four days of execution before he won a reprieve from a federal appeals court so questions about the mental retardation claims could be resolved.

“I was surprised at how clean, sterile, peaceful and humane that process was,” Bruce Isaacks, the former Denton County district attorney who prosecuted Clark, said after watching the execution. “It certainly seemed like the easy way out for somebody that committed two violent, horrific murders.”

Clark already had a stint in the Texas Youth Commission for juvenile problems, an auto theft arrest and convictions for burglary and theft by check when he was sent to prison in 1992 with a 10-year term for burglary. In an era of crowded Texas prisons, Clark won a parole after serving only 10 months. “He shouldn’t have been out,” Isaacks said. “The parole board knew that.”

Two weeks later, Clark and Brown were under arrest for the killings of Crews and Garza. The teenagers’ bodies were found in a creek north of Denton, just north of Dallas. Crews had been raped. Both victims were shot in the head with a shotgun. Evidence showed within days of their parole, Clark and Brown, who were violating parole rules by living together, stole a shotgun and rifle in burglaries. The shotgun was the murder weapon.

Brown, now serving a 20-year prison sentence for robbery, blamed the fatal shootings on Clark. Clark blamed them on Brown. DNA evidence tied Clark to Crews’ rape and shooting. He was charged but never tried for Garza’s death. The shotgun and a sawed-off .22-caliber rifle were recovered near the murder scene. The sawed-off stock of the rifle was found in Clark’s trailer home. Evidence also showed the pair bought ammunition for the shotgun.

Scheduled to die next is Ryan Dickson, 30, set for lethal injection April 26 for the slayings of an Amarillo couple during a robbery of their grocery store more than 12 years ago.

Adelante Death Penalty Abolition

Texas is Set to Execute a Mentally Retarded Man On April 11, 2007. U.S. Supreme Court Atkins Decision be Damned. On February 26, 2007 the Supreme Court of the United States denied James Clark's Petition for Writ of Certiorari on a Mental Retardation Claim. On February 28, 2007 Texas District Judge Lee Gabriel ordered the State of Texas to execute James Clark on April 11, 2007.

NOTE: On June 20, 2002 in Atkins v. Virgina, 536 U.S. 304 (2002), the U.S. Supreme Court ruled that it is unconstitutional to execute the mentally retarded.

This makes James Clark's case a horrible injustice, for each of the psychological experts who thoroughly tested Mr. Clark swear that he's mentally retarded. Amazingly, Judge Gabriel thinks that she knows better than the experts and ruled that James Clark is not mentally retarded. Just as amazingly, all of the appellate courts affirmed Judge Gabriel's decision -- the Texas Court of Criminal Appeals, the U.S. District Court, the U.S. Court of Appeals for the Fifth Circuit and now the Supreme Court of the United States.

James Clark meets the Texas legal definition of mental retardation. [See Texas Persons With Mental Retardation Act -- Texas Health & Safety Code, Chapter 591.] Yet trial judge Lee Gabriel has been allowed to supercede these laws and rule that for the purpose of the death penalty James Lee Clark is not mentally retarded.

BACKGROUND SUMMARY
After James Lee Clark exhausted his first round of Texas State and U.S. Federal appeals, the State of Texas set Mr. Clark to be executed on November 21, 2002. Mr. Clark had been sentenced to death for the June 7, 1993 capital murder of 17-year old Shari Catherine "Cari" Keeler Crews in Denton County, Texas. Jesus Gilberto Garza, 16 years old, was killed along with Miss Crews. Mr. Clark's co-defendant James Richard Brown was tried for the capital murder of Mr. Garza, but was instead found guilty of robbery.

NOTE: James Brown wasn't convicted of aggravated robbery, but simple robbery. Even though Miss Crews and Mr. Garza were murdered, the jury felt that Mr. Brown had not caused anyone serious bodily injury, nor had Mr. Brown used or exhibited a deadly weapon. However, in 2002 there was evidence that Mr. Clark is mentally retarded. Under U.S. Supreme Court decision Atkins v. Virginia the mentally retarded are ineligible for execution, and on November 18, 2002 the Texas Court of Criminal Appeals stayed that execution date, also ordering the original trial court to determine whether Mr. Clark was in fact mentally retarded.

An application for Executive Clemency was filed on October 31, 2002. However, it was rendered mute when the Texas Court of Criminal Appeals issued it's stay on November 18, 2002.

A three day evidentiary hearing was held and on November 20, 2003 Lee Gabriel found that Mr. Clark is not retarded. [See Judge Gabriel's Findings of Fact and Conclusions of Law] On March 3, 2004 the Texas Court of Criminal Appeals affirmed Judge Gabriel. [See Ex Parte James Lee Clark, WR-37,288-02.] Another execution date was set for April 27, 2004.

Another application for Executive Clemency was filed on April 6, 2004 to the Texas Board of Pardons and Paroles. It was unanimously denied on April 23, 2004.

On April 23, 2004 the U.S. Court of Appeals for the 5th Circuit stayed Mr. Clark's April 27th execution date because there was sufficient evidence that the State of Texas may have misapplied Atkins v. Virginia. The U.S. Court of Appeals ordered the U.S. District Court to determine whether Lee Gabriel and the Texas Court of Criminal Appeals were correct to deny Mr. Clark's claim of mental retardation.

On January 20, 2005, without having an evidentiary hearing, the U.S. District Judge David Folsom denied Mr. Clark his claim of mental retardation. [See Memorandum Opinion, Case No. 5:04cv124] On February 4, 2005 James Clark's attorney filed a Motion to Alter or Amend Judgment. On February 16, 2005 that Motion to Alter was denied. However, on March 16, 2005 the U.S. District Judge Folsom did grant Mr. Clark permission to appeal his claim of mental retardation to the U.S. Court of Appeals for the Fifth Circuit. [See Order Granting Application for Certificate of Appealability.]

On July 20, 2006 the U.S. Court of Appeals for the Fifth Circuit affirmed the ruling of the U.S. District Court and ultimately Texas District Judge Lee Gabriel. [See James Lee Clark v. Nathaniel Quarterman, Case No. 05-70008.] On August 2, 2006 James Clark's attorney filed a Petition for Rehearing En Banc, which was denied on August 29, 2006. Thus, and once again, Mr. Clark's claim of mental retardation was denied in spite of the fact that the only two psychologocial experts who thoroughly tested James Lee Clark found him mentally retarded.

On November 21, 2006 James Clark's attorney filed a Petition for Writ of Certiorari with the Supreme Court of the United States. On February 26, 2007 the Supreme Court denied James Clark's Petition for Writ of Certiorari. On February 28, 2007 Texas District Judge Lee Gabriel signed an Order setting April 11, 2007 for James Clark's execution.

OVERVIEW
In spite of the U.S. Supreme Court’s ruling in Atkins v. Virginia, 536 U.S. 304 (2002), which outlawed the execution of the mentally retarded, Texas appears determined to execute a mentally retarded man. Two different and independent psychological experts on mental retardation thoroughly tested Mr. Clark -- the only two experts who have thoroughly examined Mr. Clark -- and each diagnosed him as mentally retarded.

In April of 2003 Dr. George Denkowski diagnosed James Clark as mentally retarded, a person with a 65 IQ and three adaptive behavior deficits. In July of 2003 Dr. Denis Keyes diagnosed James Clark mentally retarded, a person with a 68 IQ and several adaptive behavior deficits. [All psychological reports on James Clark are available on the link to the left entitled "Expert Psychologist Reports".] A person with mental retardation is traditionally a person with an IQ of 70 or below with two or more adaptive behavior deficits.

Per the U.S. Supreme Court Atkins decision, it is illegal to execute Mr. Clark. He's mentally retarded. But this is Texas. For example, Texas didn’t let the slaves know they were free until almost 3 months after the U.S. Civil War ended. And then it wasn't really Texas that notified the slaves of their freedom. It was the Union soldiers who arrived in Galveston about three months after Robert E. Lee surrendered.

Similarly, it's been almost five years and the Texas Legislature still has not yet enacted laws to enforce the June, 2002 mandate from Atkins v. Virginia. The Texas Court of Criminal Appeals took it upon itself to create law "during this legislative interregnum to provide the bench and bar with temporary judicial guidelines in addressing Atkins claims." [See Ex Parte Briseno, Feb. 11, 2004.]

James Clark was set to be executed on November 21, 2002, and on November 15th his attorneys filed an appeal under Atkins v. Virginia, presenting evidence that James Clark is mentally retarded. In 1983, when James Clark was 15 years old and in custody of the Texas Youth Council Child Care System, James Clark was given a psychologist evaluation by psychologist Dick Clark and was diagnosed with an IQ of 74. [See Nov. 1983 Texas Youth Council Child Care System Psychological Assessment.]

NOTE: taking into consideration the Standard Error Measurement in IQ testing and the Flynn Effect (a recognized IQ inflation factor), James Clark's true IQ at age 15 was surely below 70.

On November 18, 2002 the Texas Court of Criminal Appeals agreed that this Atkins claim should at least be investigated. The Texas Court of Criminal Appeals issuesd a stay and ordered the original trial court in Denton, Texas to determine whether Clark is in fact mentally retarded. [See Texas Court of Criminal Appeals Nov. 18, 2002 Order.]

A three-day evidentiary hearing was held. [The full hearing transcript is available on the link to the left entitled "James Clark's Atkins Hearing".]

In preparation for this court ordered hearing, the Denton County, Texas District Attorney's Office hired Dr. George Denkowski, a leading Texas State licensed psychologist on mental retardation, to examine James Clark. Using the Wechsler Adult Intelligence Scale-III (WAIS-III) and other tests, Dr. Denkowski performed a 6-hour examination. WAIS-III is the most widely used individually administered IQ test for adults. Dr. Denkowski found that James Clark has an IQ of 65. Dr. Denkowski used the Adaptive Behavior Assessment System (ABAS) to find that James Clark has three adaptive behavior deficits. Dr. Denkowski also tested to make sure that James Clark wasn't faking dumb, or malingering. [See Dr. Denkowski's Forensic Psychological Evaluations Report on James Clark.]

A 65 IQ with 3 adaptive behavior deficits plainly meets the Texas statutory defintion of a person with mental retardation. [See Texas Persons with Mental Retardation Act (Chapter 591 of the Texas Health & Safety Act).] In brief and general terms, a person with mental retardation means anyone diagnosed by a licensed physician or psychologist as having a 70 IQ or less, concurrent with two or more adaptive behavior deficits, onset before age 18.

But Dr. Denkowski's diagnosis that James Clark is mentally retarded and therefore exempt from execution is not what the Denton County District Attorney Bruce Isaacks wanted to hear. Dr. Denkowski was fired and a second “expert” was hired in his place, Dr. Thomas Allen. NOTE: Bruce Isaacks was voted out of office in 2006. The current Denton County District Attorney is Paul Johnson. SPECIAL NOTE: Paul Johnson's main campaign promise was to bring integrity back to the Denton County District Attorney's Office.

Denton County Assistant District Attorney Vicki Foster’s own words about Dr. Allen are apropos: “we hired another doctor, who I'm sure you can anticipate is going to testify that [James Clark’s] not mentally retarded”. [Ex Parte James Clark, Atkins hearing, Vol. 2, pg. 201, lines 7-9.] Interestingly, Dr. Allen considered himself nothing more than a consultant: “Basically they hired me to consult with them.” [Ex Parte James Clark, Atkins hearing, Vol. 3, pg. 13, line 3.]

And consult is pretty much all that Thomas Allen did. He didn’t perform a thorough standardized examination of James Clark to make his diagnosis. He read some background information, including James Clark's 1983 psychological examination, then in May of 2003 he chatted with James Clark for a couple of hours. From this Thomas Allen reported that James Clark is not mentally retarded after all. [See Thomas Allen's Forensic Psychological Consulation.] NOTE: Thomas Allen himself used the term "Forensic Psychological Consultation".

Next James Clark’s attorneys hired an expert psychologist on mental retardation of their own, Dr. Denis Keyes, who just as Dr. Denkowski, performed a thorough standardized examination of James Clark. Dr. Keyes administered the Kaufman Adolescent & Adult Intelligence Test, the Vineland Adaptive Behavior Scale and other tests. This examination was done in two parts, lasting a total of 7.5 hours. And again, consistent with Dr. Denkowski, Dr. Keyes diagnosed James Clark mentally retarded: an IQ of 68 with several adaptive behavior deficits. [See Dr. Keyes Psychoeducational Report.]

Two psychologists experts on mental retardation thoroughly and comprehensively test James Lee Clark, and both experts diagnose James Clark mentally retarded. A "consultant" chats with James Clark for a couple of hours and says Mr. Clark's not mentally retarded. Even though Dr. Denkowski was fired by the Denton County District Attorney's Office, his diagnosis of James Clark was entered into the record. Dr. Denkowski was called to testify on James Clark's behalf during the hearing.

To further counter the diagnoses of Dr. Denkowski and Dr. Keyes, the Denton County District Attorney’s Office introduced a series of anecdotal and incidental evidence. For example, James Clark paid his rent (or often his ex-wife paid it for him), did chores in return for rent reduction and could play a card game similar to UNO, therefore he must not be mentally retarded.

Even though this evidence is not compelling at all, the trial court and the Texas Court of Criminal Appeals gave it weight in spite of the fact that it was given by a woman who readily admitted that she has memory problems. [Ex Parte James Clark, Atkins hearing, Vol. 3, pg. 184, lines 13-23.] Similarly, other untrained laypeople also provided anecdotal and incidental testimony, which was given inappropriate weight by Judge Gabriel and the Texas Court of Criminal Appeals.

Sec. 591.003(16) of the Texas Persons With Mental Retardation Act expressly provides a " 'Person with mental retardation' means a person determined by a physician or psychologist licensed in this state or certified by the department to have subaverage general intellectual functioning with deficits in adaptive behavior." That is, only a licensed physician or psychologist may determine who's mentally retarded. Anecdotal information, or the opinions of untrained laypeople is not meaningful.

The trial court's official Findings of Fact and Conclusions of Law is available at the link on the left entitled "Finds of Fact and Conclusions of Law". That link also contains a more detailed analysis than presented here.

The Texas Court of Criminal Appeals decision in James Clark's Atkins appeal, formally styled Ex Parte James Lee Clark, is available at the link on the left entitled "Texas Court of Criminal Appeals Decision". That link also contains a more detailed analysis than presented here on the Texas Court of Criminal Appeals decision in James Clark's case.

The Denton County District Attorney’s Office also entered into evidence an inventory of Mr. Clark’s property from his Texas Death Row prison cell. Mr. Clark had a copy of the books Lord Jim and A Tale of Two Cities, a newspaper clipping about the Atkins decision, various crossword puzzles, letters from people overseas, 36 magazines, etc., therefore, reasoned the Denton County District Attorney, James Clark must not be mentally retarded.

First, it's wrong to think that mental retardation is a function of the types of property a person owns. Just as it would be wrong to think: this person is well dressed, therefore he or she can't be mentally retarded; or, this person is good looking, therefore he or she can't be mentally retarded. Second, the trial court and the Texas Court of Criminal Appeals refused to consider Mr. Clark's living environment. He lives on Texas Death Row. He is locked alone in a prison cell 23 hours a day. Under normal circumstances he is only allowed out of his cell for one hour a day, and even then handcuffed and under close prison guard escort, to either bathe or enter his cell block's recreation area. He is only allowed to use the telephone with his attorney, and then only when his attorney initiates the call.

Rightfully, Mr. Clark doesn't have the freedom to go to his local WAL-MART to buy the things he likes. Similarly, Mr. Clark doesn't have the freedom to go to the his local convenience store to buy newspapers or magazines. Separately, but just as important, Mr. Clark doesn't have any money of his own. Everything Mr. Clark has in his prison cell was either given to him by the prison, or was a gift in some way, shape or form from a friend, family member or charitable well-wisher.

Plain and simple, the books Lord Jim and A Tale of Two Cities were a gift from a friend. James Clark didn't ask for those books. He didn't know anything about them until he received them in the mail. These books were Amazon.com order #002-7414259-2434446, ordered on September 19, 2002. James Clark didn't place that order; he has no access to the Internet from Texas Death Row.

The trial court and the Texas Court of Criminal Appeals didn't care that prison records showed that James Clark never checked a book out of the general prison library. He had checked a few things out of the prison law library, but nothing out of the prison general library. James Clark had no interest in general reading. His interest is picture magazines. He had 36 magazines in his cell, but the trial court and the Texas Court of Criminal Appeals didn't care, nor did they explain, that the magazines were mostly pictures of cars, motorcycles and girls.

The newspaper clipping was also a gift from a friend. The letters from overseas were from well-meaning anti-death penalty activists worldwide. Also, the trial court and the Texas Court of Criminal Appeals didn’t explain that none of the crossword puzzles were completed and most of the crossword puzzles inventoried from Mr. Clark’s Death Row Prison cell had the answer sheets attached to them. [Ex Parte James Clark, Atkins hearing, Vol. 4, pg. 19, line 14 to pg. 20, line 6.]

Also, the Texas Court of Criminal Appeals didn’t mention that the Texas Dept. of Criminal Justice (TDCJ) employee who testified to authenticate James Clark’s property inventory subsequently committed Violations of The Civil Rights of Person in Custody: "engages in sexual contact, sexual intercourse, or deviate sexual intercourse with an individual in custody". [See Texas Penal Code § 39.04(a)(2).]

This employee's criminal acts were unrelated to James Clark, but this employee's moral turpitude goes to show a complete absence of integrity and complete lack of credibility. There are also multiple allegations that she stole property from Texas Death Row prisoners.

Of special note, during the whole three-day hearing, James Clark was handcuffed, shackled and forced to wear a stun belt. There's broad consensus that stun belts should never be used on anyone, nevertheless on someone who is mentally retarded. Stun belts shock a person with 50,000 volts of electricity for 8 seconds. "The shock contains enough amperage to immobilize a person temporarily and cause muscular weakness for approximately 30 to 45 minutes. The wearer is generally knocked to the ground and shakes uncontrollably. Activation may also cause immediate and uncontrolled defecation and urination, and the belt’s metal prongs may leave welts on the wearer’s skin requiring as long as six months to heal. An electrical jolt of this magnitude causes temporary debilitating pain and may cause some wearers to suffer heartbeat irregularities or seizures." [People v. Mar, 28 Cal. 4th 1201 (2002).]

But Judge Gabriel didn't care. When James Clark's attorney asked that the stun belt be removed from Mr. Clark, Judge Gabriel simply said, "That's not my decision to make. " [Ex Parte James Clark, Atkins hearing, Vol. 3, Pg. 9, Ln. 2.] She wanted to leave the decision as to whether James Clark should be forced to wear a stun belt, even though he was already handcuffed and shackled, to the then Denton County Sheriff Weldon Lucas.

NOTE: Weldon Lucas left office as of January 1, 2005. Similar to the election campaign against former Denton County District Attorney Bruce Isaacks, the main campaign promise of current Denton County Sheriff Bennie Parkey was to bring integrity back to the Denton County Sheriff's Office.

However, and although local indictments for bribery, aggravated perjury and abuse of official capacity against Weldon Lucas have been dropped, media reports provide that Lucas is still being investigated by the FBI. He is being accused of taking kickbacks from private vendors, lying about it under oath and having jailees work to help rebuild the church to which he has been a longtime member. [Dallas Morning News newspaper report posted to www.dentonrc.com, 09:11 PM CST on Monday, March 29, 2004.]

The church work may appear charitable, or at least harmless, but it is illegal for private interests (such as Sheriff Lucas's church) to benefit from free jail labor. Jail labor is restricted to approved county government projects. And this is the sort of man that Judge Gabriel wanted, someone being accused of repeated acts of official misconduct, to decide whether James Clark should be forced to wear a stun belt in court. Judge Gabriel effectively wanted this type of man to decide when and when not to activate a stun belt upon a handcuffed, shackled and mentally retarded man.

Amazingly, on March 3, 2004 the Texas Court of Criminal Appeals accepted Judge Lee Gabriel's finding in an 8-1 ruling. For the purpose of the death penalty, James Lee Clark isn't mentally retarded, so says the Texas Court of Criminal Appeals and the Great State of Texas.

The Texas Court of Criminal Appeals' full written opinion in James Clark's case is available on the link to the left entitled "Texas Court of Criminal Appeals Decision". The Briseno opinion, the first opinion the Texas Court of Criminal Appeals gave on an Atkins claim, is also available on that link.

The Texas Court of Criminal Appeals didn't care that a person with a 65 IQ and three adaptive behavior deficits would otherwise be classified as mentally retarded. Instead, the Texas Court of Criminal Appeals ruled that “[a]lthough experts may offer insightful opinions on the question of whether a particular person meets the psychological diagnostic criteria for mental retardation, the ultimate issue of whether this person is, in fact, mentally retarded for purposes of the Eighth Amendment ban on excessive punishment is one for the finder of fact, based upon all of the evidence and determinations of credibility.”

The Texas Court of Criminal Appeals in effect told every trial judge and every jury in Texas that it's perfectly OK to ignore expert psychological diagnosis in death penalty cases involving mental retardation. In criminal cases in Texas it is either the trial judge or the trial jury that is the "finder of fact". However, in capital cases in which the prosecution is seeking the death penalty, then only the jury may be the "finder of fact".

But Texas' legal treatment of James Clark becomes all the more reprehensible when compared to the Texas legal treatment of former Texas Death Row inmate Robert Smith.

There was evidence that Robert Smith is mentally retarded, so the Harris County presiding trial court convened a hearing to determine whether Robert Smith is in fact mentally retarded. Harris County District Attorney Chuck Rosenthal hired a psychological expert, interestingly it was Dr. George Denkowski, and the defense hired their own psychological expert, Dr. Jerome Brown. [A more detailed analysis than presented here is available on the link to the left entitled "Comparison with Former Texas Death Row Inmate Robert Smith's Case".]

Dr. Denkowki and Dr. Brown thoroughly examined Mr. Smith, and each expert diagnosed Robert Smith as mentally retarded, concurring that Smith has a 63 IQ with two or more adaptive behavior deficits. Dr. Brown used the Wechsler Adult Intelligence Scale-III (WAIS-III) to determine Robert Smith's IQ. The exact same test that Dr. Denkowski used to determine James Clark's IQ, and even though Dr. Denkowski himself didn't perform the WAIS-III on Robert Smith, he concurred with the results after a thorough examination of his own. Dr. Denkowski didn't just chat with Robert Smith for a couple of hours.

Amazingly, all of the government officials involved with Robert Smith's case called for and got an immediate commutation of Mr. Smith's death sentence to life in prison: the prosecutor, the judge, the unanimous membership of the Texas Board of Pardons and Paroles and the Texas Governor. Dr. Denkowski's diagnosis of Robert Smith was given complete credence, if not total deference. And Harris County District Attorney Chuck Rosenthal, the Texas Board of Pardons and Paroles, and Texas Governor Rick Perry have no reputation for kindness or mercy when it comes to the death penalty.

But Denton County District Attorney Bruce Isaacs, Denton County District Judge Lee Gabriel and 8 of the 9 members of the Texas Court of Criminal Appeals treated Dr. Denkowski's diagnosis of James Clark as worthless. Robert Smith has a tested IQ of 63 with two or more adaptive behavior deficits, and the State of Texas rushed to commute his death sentence to life in prison. James Clark has a tested IQ of 65 with two or more adaptive behavior deficits, and the State of Texas is rushing to have him executed.

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On March 10, 2004 Judge Lee Gabriel signed a court order setting Mr. Clark's execution for April 27, 2004. On April 23, 2004 the U.S. Court of Appeals for the 5th Circuit stayed Mr. Clark's April 27th execution date because there was sufficient evidence that the State of Texas may have misapplied the law. The U.S. Court of Appeals ordered the U.S. District Court to determine whether Texas's denial of Mr. Clark's claim of mental retardation was correct.

On February 26, 2007 the Supreme Court of the United States denied James Clark's Petition for Writ of Certiorari. On February 28, 2007 Texas District Judge Lee Gabriel signed an Order setting April 11, 2007 for James Clark's execution.

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In brief summary, Texas has a statutory definition of mental retardation. Also, the American Association on Mental Retardation has an accepted standard clinical definition of mental retardation. The 2002 American Association on Mental Retardation's definition of mental retardation was cited by the U.S. Supreme Court in Atkins v. Virginia, and it has clinical national consensus. Note, Texas's statutory definition for mental retardation was written in 1991, amended in 1993, to be used within the realm of public health. The State of Texas has not yet passed specific legislation to address the requirements of U.S. Supreme Court decision Atkins v. Virginia.

The Texas statutory definition of mental retardation is contained in the Texas Health and Safety Code. It is specifically called the Persons with Mental Retardation Act. §591.003(1) - "Adaptive behavior" means the effectiveness with or degree to which a person meets the standards of personal independence and social responsibility expected of the person's age and cultural group. §591.003(13) - “Mental retardation" means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period. §591.003(16) - "Person with mental retardation" means a person determined by a physician or psychologist licensed in this state or certified by the [Texas Dept. of Mental Health and Mental Retardation] to have subaverage general intellectual functioning with deficits in adaptive behavior. §591.003(20) - "Subaverage general intellectual functioning" refers to measured intelligence on standardized psychometric instruments of two or more standard deviations below the age-group mean for the tests used.

The American Association on Mental Retardation’s 1992 definition of mental retardation is mentioned in Atkins v. Virginia: “Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18."

However, in 2002 the American Association on Mental Retardation refined and enhanced their definition: “Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.” Coupled with this definition are “Five Assumptions Essential to the Application of the Definition: 1) Limitations in present functioning must be considered within the context of community environments typical of the individual's age peers and culture; 2) Valid assessment considers cultural and linguistic diversity as well as differences in communication, sensory, motor, and behavioral factors; 3) Within an individual, limitations often coexist with strengths; 4) An important purpose of describing limitations is to develop a profile of needed supports; 5) With appropriate personalized supports over a sustained period, the life functioning of the person with mental retardation generally will improve.”

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Even though trial judge Lee Gabriel and an 8-1 majority of the Texas Court of Criminal Appeals used the Texas Persons with Mental Retardation Act to define mental retardation in James Clark's case, they conveniently ignored §591.003(16) of that Act, the very definition of a "person with mental retardation".

And the reason is that James Clark satisfies the statutory definition of a "person with mental retardation". That definition is "a person determined by a physician or psychologist licensed in this state or certified by the [Texas Dept. of Mental Health and Mental Retardation] to have subaverage general intellectual functioning with deficits in adaptive behavior."

Dr. George Denkowski is a licensed psychologist in Texas. Dr. Denkowski determined by thorough standardized examination that James Clark has subaverage general intellectual functioning with deficits in adaptive behavior. Thus, by Texas law James Clark is a "person with mental retardation".

Judge Lee Gabriel and the Texas Court of Criminal Appeals can't pick and choose what parts of the Texas Persons with Mental Retardation Act that they want to use and what parts of the Texas Persons with Mental Retardation Act that they want to ignore. That's called a violation of due process and a denial of equal protection under the law.

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Separately, but just as importantly, James Clark has other important issues. There is, briefly,

A Wiggins Claim: In Wiggins v. Smith (2003) the U.S. Supreme Court ruled that during the penalty phase of a capital trial the defendant's legal counsel must perform a reasonably thorough investigation before deciding a defense strategy. Anything less is an unconstitutional deprivation of the right to effective assistance of counsel.

In James Clark's original trial his defense attorneys -- Richard Podgorski and Henry Paine -- made no opening arguments, called no witnesses for the guilt-innocence or for the punishment phases of the trial. During their investigation of James Clark's background there's no evidence that either Podgorski or Paine tried to contact James Clark's mother, his brothers, his stepfather, any of his elementary school teachers or his middle school teachers, etc. [A more detailed analysis than presented here is available on the link to the left entitled "Claim Under Wiggins v. Smith, 2003".]

Texas is Set to Execute a Mentally Retarded Man On April 11, 2007. U.S. Supreme Court Atkins Decision be Damned.

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Two Applications for Executive Clemency have been filed in James Clark's behalf. One was filed on October 31, 2002, with a November 5, 2002 supplement. This was when James Clark had a November 21, 2002 execution date. The other was filed on April 6, 2004, with an April 12, 2004 supplement. This is for his April 27, 2004 execution date. All documents are PDFs.

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October 31, 2002: This Application examines the problems with James Clark's original trial -- the inadequate legal representation he received at trial, the judicial indiscretion and the prosecutorial duplicity. This application also examines the meaning of Clemency. This PDF is approximately 1.7 Mbytes.

November 5, 2002: This supplement presents evidence that James Clark may be mentally retarded. This PDF is approximately 175 Kbytes.

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April 6, 2004: This application compares James Clark's Atkins hearing with Robert Smith's Atkins proceedings. Robert Smith was diagnosed as mentally retarded, a 63 IQ with 5 adaptive behavior deficits, and his death sentence was commuted to life. James Clark was diagnosed as mentally retarded, a 65 IQ with three adaptive behavior deficits, and he is scheduled to be executed on April 27, 2004. This PDF is approximately 275 Kbytes.

April 12, 2004: This supplement explains that James Clark has not yet presented a claim of ineffective assistance of counsel under U.S. Supreme Court case Wiggins v. Smith, 539 U.S. 510 (2003). This PDF is approximately 175 Kbytes.

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March 21, 2007: This application examines the means and manner in which Texas deprived James Lee Clark of legal fairness on his mental retardation claim. The Texas courts were wrong:

-to have allowed the Denton County District Attorney to hire and fire psychological experts on mental retardation until he found one who would give him the testimony he wanted to hear.

-to overrule the only two psychological experts who performed relevant and reliable diagnosis. Each swear that James Clark is mentally retarded. Instead Texas took the opinion of a psychologist who simply chatted with James Clark for 2 hours and 16 minutes.

-to use faulty science. The standard error of measurement and the Flynn Effect must be considered in IQ testing. not to have waited for The People, via the Texas Legislature, to enact law in compliance with Atkins v. Virginia.

The exhibits from this clemency application filed on March 21, 2007 are also available:

ProDeathPenalty.com

Police recovered both bodies from the creek and determined that Crews had been sexually assaulted by Clark, as verified by DNA evidence, and then killed with a single shotgun wound (a contact wound) to the back of the head. Garza also died from a single shotgun wound, but it was to the left side of his chin or jaw. Powder residue revealed a short muzzle-to-wound distance, but it was not a contact wound. Police also recovered a 12 gauge double barrel shotgun and a .22 caliber rifle from the crime scene.

During interrogation, Clark stated that Brown instigated the incident; shot himself while using the shotgun as a bludgeon to strike Garza in the head; and, after suffering the severe gunshot wound to the leg, shot and killed both victims. Brown contended that Clark killed both victims. Clark was indicted on the charge of capital murder arising out of the June 7, 1993, robbery, sexual assault, and death of Crews. Clark was convicted of the capital murder on April 29, 1994, and he was sentenced to death on May 3, 1994.

UPDATE: Ten years after the murders of two high school students, their killer is pretending to be mentally retarded to avoid execution, prosecutors argued during a hearing in September of 2003. But defense attorneys said the man, James Lee Clark, is impaired and should be spared because the U.S. Supreme Court has ruled that executing the mentally retarded is cruel and unusual. State District Judge Lee Gabriel has about two months to rule on whether Clark is mentally retarded. This hearing was a continuation of one that began in August.

Clark was sentenced to death for killing Catherine "Cari" Crews in 1993. Crews, 17, and a friend, 16-year-old Jesus Gilberto Garza, were robbed and killed with a shotgun. Their bodies were dumped in a creek north of Denton. Crews was sexually assaulted. Clark was convicted of capital murder and sentenced to die. An accomplice, James Richard Brown, was sentenced to 20 years for robbery.

Assistant District Attorney Vicki Foster, who tried Clark's original case, said Clark has changed his behavior. "This isn't him. During the original trial, he participated, he made wisecracks," she said. Clark was scheduled to die in November 2002, but the Texas Court of Criminal Appeals issued a stay two days before his execution.

The courts define mental retardation as having an IQ below 70. Clark's IQ was 74 when he was sent to the Texas Youth Commission after a juvenile conviction in 1983. Two other tests showed Clark's IQ at 65 and 68. Thomas Allen, a psychologist for the prosecution, said he believes Clark was deliberately getting answers wrong on those tests. Clark reached the equivalent of the 12th grade at the Gainesville State School, completed a GED and took a community college welding class, testimony showed. George C. Denkowski, a psychologist for the defense, questioned Allen's findings. Allen interviewed Clark for only two hours and 16 minutes and never performed any tests to prove whether Clark was malingering, Denkowski said. Clark's cell on Death Row contained copies of newspaper articles, crossword puzzles and two novels: A Tale of Two Cities and Lord Jim. But none of the crosswords had been completed, and his attorneys said outside the courtroom that he never read the books.

A few members of Garza's family and a friend of the Crews family were in the courtroom Monday. Clark sported horn-rimmed glasses and a shaven head. He spent most of his time looking down at the defense table. Occasionally, his head twitched, and he appeared to mumble to himself.

UPDATE: In November of 2003, a judge ruled that even if the man who killed a 17-year-old Denton high school student 10 years ago is mildly retarded, he is not so impaired that he can be exempted from the death penalty. James Lee Clark also cannot be classified as mentally retarded because he fails to meet the criteria of the definition set in the Texas Health and Safety Code, 367th state District Judge Lee Gabriel states in her ruling. The decision will now be reviewed by the Texas Court of Criminal Appeals. Attorneys for Clark had cited a U.S. Supreme Court ruling that bars execution of the mentally retarded. That ruling came down in June 2002, before Clark was to be executed in November 2002 for killing Catherine "Cari" Crews, a Ryan High School student. The Texas Court of Criminal Appeals granted Clark a stay of execution in November 2002 after he and his attorneys invoked the Supreme Court ruling. The bodies of Crews and 16-year-old Jesus Gilberto Garza, a classmate and acquaintance, were found in a creek north of Denton with shotgun wounds to the head. Both were robbed and shot the night of June 7, 1993. Clark _ who had not previously claimed to be mentally retarded _ was arrested in connection with the fatal shootings while on parole after serving less than a year of a 10-year term for burglary in Dallas County. An accomplice in the murders, James Richard Brown, received a 20-year prison sentence for robbery.

National Coalition to Abolish the Death Penalty

James Lee Clark, April 11, TX
Do Not Execute James Lee Clark!

Texas is scheduled to execute James Lee Clark on April 11, 2007, for the June 1993 murder of Shari Catherine Crews.

The state of Texas should not execute James Lee Clark for his role in this crime. Executing Clark would violate the right to life as proclaimed in the Universal Declaration of Human Rights and would constitute the ultimate cruel, inhuman and degrading punishment. Also, in June 2002, the Supreme Court ruled in Atkins v. Virginia that the state cannot execute someone who is mentally retarded. Several experts have found Clark’s IQ to be under 70, thus fitting the definition of mental retardation. Clark has received 2 stays of execution on this issue in the past 5 years.

Please write to Gov. Rick Perry on behalf of James Lee Clark!

Ex parte Clark, Not Reported in S.W.3d, 2004 WL 885583 (Tex.Cr.App. 2004) (State Habeas).

Background: After defendant was convicted of capital murder and was sentenced to death, he petitioned for a writ of habeas corpus. The trial court, Denton County, denied the petition. Defendant appealed.

Holding: The Court of Criminal Appeals held that defendant failed to establish, by a preponderance of the evidence, that he was mentally retarded such that he was exempt from the death penalty under Atkins v. Virginia. Writ relief denied.

PER CURIAM.
This is a subsequent application for writ of habeas corpus filed pursuant to Article 11.071, § 5, of the Texas Code of Criminal Procedure.

On May 3, 1994, a jury convicted applicant of capital murder and, pursuant to its answers to the special punishment issues, the trial court set punishment at death. This Court affirmed applicant's conviction on direct appeal. Clark v. State, No. 71,991 (Tex.Crim.App.1996) (not designated for publication). Applicant filed his original application for writ of habeas corpus on October 6, 1997. We denied relief-as did the federal courts.

Ten days before his scheduled execution on November 21, 2002, applicant filed a subsequent application raising seven different claims. We reviewed the application and found that the first allegation, an Atkins claim of mental retardation, satisfied the requirements of Section 5 of Article 11.071. The remaining allegations did not satisfy Section 5 and were dismissed as an abuse of the writ. We granted applicant's request for a stay of execution, and remanded his mental retardation claim to the trial court for further proceedings.

In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court announced that there is a national consensus that those who suffer from mental retardation should be exempt from the death penalty. However, the Court simultaneously left to the individual states the substantive and procedural mechanisms to implement that decision. Id. at 317. The Supreme Court also noted that “not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Id.

In Ex parte Briseno, --- S.W.3d ----, 2004 Tex.Crim.App. LEXIS 199 (Tex.Crim.App.2004), this Court set out the substantive definitions and procedural mechanisms that apply to Atkins claims raised in post-conviction writs of habeas corpus. In Briseno, noting the absence of a statutory definition of mental retardation for purposes of Atkins, we adopted: the definitions of “mental retardation” set out by the American Association on Mental Retardation (AAMR), and that contained in section 591.003(13) of the Texas Health and Safety Code. Under the AAMR definition, mental retardation is a disability characterized by: (1) “significantly subaverage” general intellectual functioning; (2) accompanied by “related” limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18.... [T]he definition under the Texas Health and Safety Code is similar: “ ‘mental retardation’ means significantly subaverage intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.” Briseno, --- S.W.3d at ----, 2004 LEXIS. These are the same definitions that the trial court used in assessing applicant's evidence of mental retardation.

The trial court conducted an evidentiary hearing over several days to permit both applicant and the State an opportunity to introduce all pertinent testimony, records, and other materials on the issue of mental retardation. Based upon that evidence, the trial court entered findings of fact and conclusions of law recommending that we deny relief.

The trial court noted that applicant had IQ test scores both above and below 70. In November 1983, when applicant was fifteen-and-a-half and in the custody of the Texas Youth Commission (TYC), his full scale IQ, measured by the Wechsler Intelligence Scale for Children-Revised, was 74, with the verbal component at 74 and the performance component at 78. This IQ score was considered reliable by both the defense and State's experts at the Atkins hearing. However, the psychologist who conducted applicant's TYC psychological assessment in 1983 noted that these results might be low because of applicant's minimal efforts during the test. He stated that “the student's intellectual potential is projected to fall somewhere between the dull average and average ranges, based on the student's performance on certain subtests involving higher intellectual processes, i.e., analytical reasoning and ideational planning.” This psychologist also stated that applicant “demonstrates a fair potential for dealing with verbal abstractions, and has a decent working fund of general information in view of his background and academic difficulties.”

In his achievement tests, applicant's reading ability scored at the 9.6 grade level, spelling at 8.5, and math at 5.6, which was noted as “only slightly below grade norms for his age group.” The psychologist attributed applicant's placement in “the special assignment class” in middle school to truancy and negative behavior. Applicant told this psychologist that he smoked marijuana approximately three to five times a week and bought beer three to four times weekly. His mother told TYC officials that applicant “steals from everyone” and “has no friends in school ... because he steals from them all.” According to his TYC caseworker, applicant “is an extremely angry student and will attempt to play ‘dumb.’ “ In 1983, applicant was diagnosed as having “conduct disorder, associated with psychological deprivation, coupled with features of immature personality.”

After his writ application was remanded to the trial court, applicant was given two more IQ tests in April and June of 2003. On these tests, applicant scored considerably lower. On the April test, his full score IQ measured at 65, with a verbal component of 74 and a performance component of 60. The June test was consistent with that in April. The trial court noted that “within a prison population, it is highly unusual to have a verbal IQ higher than the performance IQ. This pattern is more common in individuals with a higher education.” The trial court noted that it is possible for a motivated testee to manipulate scores to make them lower by deliberately missing questions. Thus, it concluded that applicant's test scores taken before the age of eighteen and before he had been convicted of capital murder more accurately reflected applicant's IQ.

The trial court also compared the evidence submitted by both the applicant and the State regarding adaptive behavior during the developmental period. The court noted that applicant completed the 11th grade in TYC and that, between 1983 and 1986, his grades steadily improved. Applicant obtained a GED in 1985 and completed a welding class at Cooke County College that same year. He was successfully employed in several different departments at the Gainesville State School and had positive reports from his supervisors. The trial court concluded that the TYC records showed that applicant adapted to, and succeeded in, his environment and he “was able to learn information sufficient to obtain adequate grades in school, to develop job skills, and to interact socially.”

Applicant committed the present offense on June 7, 1993, when he was 25 years old. Although the trial court's findings did not discuss any of the circumstances of the offense to determine whether commission of the crime showed careful planning, complex execution of purpose, or analytical sophistication, this Court noted in its opinion on direct appeal that: the evidence presented showed a calculated plan consummated with forethought and deliberateness. [Applicant] planned days in advance to carry out some sort of criminal scheme; he systematically broke into vehicles securing weapons and other paraphernalia and then went to at least two different stores in search of ammunition for those weapons. Clark v. State, No. 71,911, slip op. at 5.

The habeas trial court considered evidence of applicant's general level of adaptive skills at and near the time of the offense. Applicant lived in a mobile home park, paid rent, did chores for the trailer park owners in return for a rent reduction, played cards once or twice a week with the owners, went to the library, worked on his ex-wife's car, drove his own car, and obeyed the rules of the trailer park. After the murders, the investigating Texas Ranger had no problem communicating with applicant who was responsive to the specific questions. According to the trial court's findings, “[w]hen Applicant was confronted with inconsistencies, Applicant changed his response and transitioned rapidly into developing a new story” and he “could react quickly on his feet.”

The habeas court also noted that a deputy sheriff who was assigned to applicant during the capital murder trial stated that “Applicant was very focused during trial and wrote notes constantly about what a witness said.” He was very active in assisting his lawyers to choose the jury. He had been booked into the Denton County Jail with a True Confessions magazine, a crossword puzzle book, and a driver's license. Applicant made numerous requests to use the law library during the six months preceding his trial and filed a written complaint that a jailer's failure to give him food after he had been returned late from the courthouse was a “violation of my lawful right.”

The trial court noted that applicant kept and maintained numerous items in his cell on Death Row, including the books Lord Jim and Tale of Two Cities, a Houston Chronicle article dated February 17, 2003, entitled “States Try to Define Mental Retardation,” various crossword puzzles, correspondence from people in other countries, a chess set, a typewriter, and 36 magazines. The Death Row law librarian testified that applicant checked out numerous court decisions, including two from the Supreme Court, and that applicant requested several consultations with other inmates, indicating that he could help another inmate do legal research and write a brief to the United States Court of Appeals for the Fifth Circuit.

The trial court noted that two defense psychologists testified that applicant had significant limitations in adaptive skills, either currently or at the time of the capital murder, but the trial court found that these assessments were contrary to the evidence of applicant's actual behavior, either in 1993 or in 2003 when they tested and interviewed him. As we noted in Briseno:

Although experts may offer insightful opinions on the question of whether a particular person meets the psychological diagnostic criteria for mental retardation, the ultimate issue of whether this person is, in fact, mentally retarded for purposes of the Eighth Amendment ban on excessive punishment is one for the finder of fact, based upon all of the evidence and determinations of credibility. --- S.W.3d at ----, 2004 Tex.Crim.App. LEXIS at *19-20.

Based upon the testimony and materials submitted at the evidentiary hearing, the trial court found that applicant did not have “significant limitations in the adaptive skill areas of communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, or work.”

This Court has reviewed the record. The findings of fact and conclusions of law made by the trial court are supported by the record. Applicant has failed to show, by a preponderance of the evidence, that he is mentally retarded such that he is exempt from the death penalty under Atkins v. Virginia. Therefore, we deny relief. IT IS SO ORDERED THIS THE 3rd DAY OF MARCH, 2004.

HOLCOMB, J., dissents with note. I respectfully dissent for the reasons expressed in my dissent in Ex parte Briseno.

Clark v. Johnson, 227 F.3d 273 (5th Cir. 2000) (Federal Habeas).

Following affirmance of capital murder conviction and death sentence, petition for writ of habeas corpus was filed. The United States District Court for the Eastern District of Texas, Howell Cobb, J., denied petition. Petitioner requested certificate of appealability (COA). The Court of Appeals, Dennis, Circuit Judge, held that: (1) petitioner failed to establish Brady violation; (2) state court's findings were sufficient to support death sentence; (3) Teague doctrine barred adoption of new rule; and (4) petitioner was not denied effective assistance of counsel. Request denied.

DENNIS, Circuit Judge:
Texas death row inmate James Lee Clark requests that we grant a certificate of appealability as required by 28 U.S.C. § 2253(c) before an appeal may be taken from the district court's denial of habeas relief. We deny Clark's request.

I. FACTS and PROCEDURAL BACKGROUND

In the early morning of June 7, 1993, James Lee Clark and James Brown arrived at a Texaco store in Denton, Texas, and asked the store clerk to call an ambulance for Brown who had suffered a gunshot wound. Subsequent investigation revealed that Brown accidentally shot himself in the leg at point blank range with a shotgun while he and Clark were assaulting Shari Catherine “Cari” Crews (16 years old) and Jesus Garza (17 years old) at Clear Creek. Police recovered both bodies from the creek and determined that Crews had been sexually assaulted by Clark, as verified by DNA evidence, and then killed with a single shotgun wound (a contact wound) to the back of the head. Garza also died from a single shotgun wound, but it was to the left side of his chin or jaw. Powder residue revealed a short muzzle-to-wound distance, but it was not a contact wound. Police also recovered a 12 gauge double barrel shotgun and a .22 caliber rifle from the crime scene.

Further investigation revealed that Clark and Brown, both parolees, stole the shotgun and rifle in car burglaries on June 4, 1993. The stock of the rifle had been shortened and police found the sawed off portion while searching Clark's residence; the stock of the shotgun was cracked. The search of Clark's residence also produced tennis shoes splattered with the blood of Brown, Crews, and Garza. During interrogation, Clark stated that Brown instigated the incident; shot himself while using the shotgun as a bludgeon to strike Garza in the head; and, after suffering the severe gunshot wound to the leg, shot and killed both victims. Brown contended that Clark killed both victims.

Clark was indicted on the charge of capital murder arising out of the June 7, 1993, robbery, sexual assault, and death of Crews. Clark was convicted of the capital murder on April 29, 1994, and he was sentenced to death on May 3, 1994. The conviction and sentence were affirmed by the Texas Court of Criminal Appeals on October 2, 1996. On October 15, 1996, Clark's trial attorneys informed him that they would no longer represent him, and on the following day Clark filed a pro se motion for appointment of counsel to pursue state habeas relief. Clark also filed a pro se motion on October 18, 1996, for an extension of time to file a motion for rehearing by the Court of Criminal Appeals. Although this motion was granted and the time extended until November 11, 1996, no motion for rehearing was filed.

The Court of Criminal Appeals appointed counsel for Clark to pursue collateral proceedings on April 9, 1997. Clark subsequently applied for a writ of habeas corpus in the trial court on October 6, 1997, challenging the validity of his conviction and sentence by asserting eleven grounds for relief. Without holding an evidentiary hearing, the trial court entered findings of fact and conclusions of law. The Court of Criminal Appeals reviewed the record, adopted the trial court's findings and conclusions (with the exception of finding of fact number ten, which it found unsupported by the record), and denied habeas relief on July 8, 1998.

On July 27, 1998, Clark filed a petition for habeas relief in the federal district court asserting five grounds for relief: (1) the prosecutor suppressed exculpatory information; (2) the petitioner received a disproportionate sentence given his role in the crime; (3) the trial court's failure to instruct the jury on the unavailability of parole during the initial thirty-five years of a life sentence violated due process of law; (4) the petitioner was denied effective assistance of counsel during direct appeal; and (5) the petitioner was denied effective assistance of counsel when his appointed counsel failed to present available evidence during the punishment stage. Without allowing for discovery or holding an evidentiary hearing, and after conducting a de novo review of the magistrate's report and overruling Clark's objections thereto, on December 13, 1999, the district court adopted the magistrate's conclusions of law and findings of fact, and denied the petition for habeas corpus.

On January 12, 2000, Clark timely filed a notice of appeal and simultaneously applied to the district court for a certificate of appealability (COA) as required by 28 U.S.C. § 2253(c) to obtain review in this court of the denial of federal habeas relief. Clark's application urged the same five arguments that were rejected by the district court, and it also sought to appeal the district court's refusal to permit discovery or to conduct an evidentiary hearing regarding the first five claims for relief. The district court denied COA as to all six claims on January 28, 2000.

II. DISCUSSION

Clark seeks a COA from this court on five constitutional issues: (1) the prosecution's violation of Clark's right to due process of law by its failure to disclose to Clark's trial counsel favorable, material evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) the violation of Clark's Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment resulting from the prosecution's inconsistent argument in a subsequent related trial as to the identity of the shooter and the state trial court's jury instructions, which permitted a capital murder conviction and a sentence of death without a finding that Clark was the actual killer, had attempted to kill, or had intended that a human life be taken; (3) the violation of Clark's due process rights resulting from the trial court's failure to instruct the jury that Clark would be ineligible for parole for thirty-five years if sentenced to life imprisonment; (4) the denial of effective assistance as guaranteed by the Sixth and Fourteenth Amendments at a critical stage during Clark's direct appeal that precluded him from seeking a rehearing in the Court of Criminal Appeals and a petition for writ of certiorari to the United States Supreme Court; and (5) the denial of effective assistance of counsel at the punishment stage of the capital murder trial during which Clark's counsel presented no favorable evidence despite its availability, in violation of the Sixth and Fourteenth Amendments. Clark additionally challenges the federal district court's refusal to permit discovery or to hold an evidentiary hearing to determine the validity of Clark's claim of a Brady violation and of ineffective assistance of counsel at the punishment stage.

This case is governed by the AEDPA because Clark's petition for federal habeas relief was filed on July 27, 1998, after the AEDPA effective date of April 24, 1996. See Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir.1997). As Clark seeks to appeal “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court,” he must first obtain a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may issue only if Clark “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Such a showing requires the applicant to demonstrate 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.” Hill v. Johnson, 210 F.3d 481, 484 (5th Cir.2000) (citing and quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir.1996), overruled in part on other grounds by Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (internal quotation marks and additional citations omitted). Where, as here, the district court has rejected a prisoner's constitutional claims on the merits, the applicant must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. See Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000)(citing Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000)). “We resolve doubts about whether to grant a COA in [a petitioner's] favor, and we may consider the severity of his penalty in determining whether he has met his ‘substantial showing’ burden.” Hill, 210 F.3d at 484 (citing Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997), cert. denied, 522 U.S. 963, 118 S.Ct. 399, 139 L.Ed.2d 312 (1997)).

a) Brady due process violation claim.

In Brady v. Maryland, the Supreme Court held that a prosecutor must disclose evidence to a criminal defendant if that evidence is favorable to the defendant and material to the defendant's guilt or punishment. 373 U.S. at 87, 83 S.Ct. 1194. The Supreme Court has found evidence material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict of confidence. A ‘reasonable probability’ of a different result is accordingly shown when the government's evidentiary suppression ‘undermines confidence in the outcome of trial.’ ” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)(citing Bagley, 473 U.S. at 678, 105 S.Ct. 3375).

Clark maintains that during his capital murder trial the state prosecutor argued that Clark had shot Cari Crews and Jesus Garza, whereas at the subsequent trial of Clark's co-defendant, James Brown, the prosecutor argued that Brown was the lone triggerman in the murders. Allegedly, the prosecutor's arguments at the Clark trial were based upon the testimony of Dr. John Kristofferson, Brown's orthopedic surgeon, who opined that Brown, due to the seriousness of a gunshot wound accidentally inflicted prior to the murders, was not likely able to walk or stand at the time Crews and Garza were killed. This testimony, in conjunction with the expert testimony from the autopsy physician, Dr. Marc Krouse, as to the muzzle-to-wound distance and entry wound location regarding Garza indicating that the shotgun was fired while being held parallel to the front of Garza's torso, allowed the prosecutor to argue that Clark was the triggerman since Brown was injured too severely to load the shotgun and because “it wasn't just somebody laying on the ground, aiming a shotgun at somebody and shooting them.”FN1

FN1. Because the murder weapon was a double barrel shotgun and because Brown was accidentally shot in the leg prior to the murders before Crews and Garza were killed, someone must have unloaded the spent cartridge and reloaded the shotgun.

Later, at Brown's trial, the prosecution argued that Brown was the triggerman in both murders. This argument was again based in part upon expert testimony given by the autopsy physician, Dr. Marc Krouse, concerning the muzzle-to-wound distance with respect to Jesus Garza. Clark argues that in Brown's trial Dr. Krouse's opinion of the muzzle-to-wound distance was “manicured” or revised to “just a few inches” instead of “a couple of feet” as he had testified in Clark's trial. Clark argues that the difference between the versions of Dr. Krouse's expert opinions was material and favorable to his defense, but was not available to his trial counsel for use at his trial. According to Clark, had this evidence been available to him, he too could have advanced the same argument in his trial that the prosecution advanced subsequently in Brown's trial:

Whoever shot Garza right here in the left side of the jaw, whoever shot him had that gun three or four inches below his chin. This gun is some 24 inches long. You heard testimony to that. Where does that put the trigger? That's the kind of awkward position for someone facing Jesus [Garza] to pull the trigger and shoot him here. What is that consistent with? What this wound and this shotgun are consistent with is that the shooter is sitting. And either Jesus was standing over him posing a threat, or Jesus was as Brown said, lying unconscious on the ground, and the shooter sitting on the ground shot him there. That's what the physical evidence tells you.

The district court rejected Clark's argument, concluding that (1) Dr. Krouse's testimony in both trials was essentially consistent, i.e., in both cases he in effect testified that Garza was killed by a shot fired a short distance from his head (“a couple of feet” in Clark's trial and “just a few inches” in Brown's trial) and therefore did not suggest a suppression of evidence; and (2) that, assuming Dr. Krouse's testimony was significantly inconsistent with respect to Garza's fatal wound, that inconsistency would not have tended to exculpate Clark from the crime of which he was convicted-the capital murder of Cari Crews.

We cannot say that the district court erred in either finding. We find that Clark has failed to state a Brady claim as he has failed to show suppression and materiality. Clark has presented no proof of suppression. “[C]losing arguments are not evidence. Moreover, a prosecutor can make inconsistent arguments at the separate trials of codefendants without violating the due process clause.” Beathard v. Johnson, 177 F.3d 340, 348 (5th Cir.1999). There is also no proof that the prosecution suppressed any evidence regarding Dr. Krouse's testimony because the testimony was not markedly different in the two trials. Moreover, Clark fails to demonstrate materiality because as the prosecutor's argument in Brown's case indicates, a muzzle-to-wound distance regarding Garza of “just a few inches” does not make it any more likely that Garza was killed by a shot from a sitting rather than a standing position. Accordingly, Clark has failed to make a substantial showing of the denial of a constitutional right with respect to his claim of a Brady violation.

b) Enmund and Tison claim.

Clark argues that a violation of his Eighth and Fourteenth Amendment rights resulted from the prosecution's inconsistent arguments regarding the identity of the actual shooter in combination with the trial court's instructions permitting a conviction and death sentence without the jury finding that Clark actually killed, attempted to kill, or intended that a human life be taken, in violation of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).

Enmund v. Florida held that the death penalty may not be imposed on one who “aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” 458 U.S. at 797, 102 S.Ct. 3368. Sentenced to death, Enmund had driven the “getaway” car for two others who had robbed and killed an elderly couple. Focusing on Enmund's individualized culpability, the Court found that he did not kill, attempt to kill, or intend to kill; thus, the imposition of the death penalty was impermissible under the Eighth Amendment. Id. at 798, 458 U.S. 782. Tison v. Arizona subsequently limited Enmund by holding that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” 481 U.S. at 158, 107 S.Ct. 1676.

Clark contends that two different instructions violated Enmund and Tison. First, he argues that the use of Texas Penal Code § 7.02(b), FN2 governing liability of co-conspirators, at the guilt/innocence phase violates Enmund and Tison because it does not require the co-conspirator to have the intent to commit murder. However, Enmund and Tison apply to the sentencing phase of the trial and not to the guilt/innocence phase. See Enmund, 458 U.S. at 801, 102 S.Ct. 3368, and Tison, 481 U.S. at 157, 107 S.Ct. 1676. See also Walton v. Arizona, 497 U.S. 639, 649, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990)(“Enmund only places ‘a substantive limitation on sentencing, and like other such limits it need not be enforced by the jury.’ ”); Cabana v. Bullock, 474 U.S. 376, 385, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986)(“Rather, as the Fifth Circuit itself has recognized, Enmund ‘does not affect the state's definition of any substantive offense, even a capital offense.’ ”)(citing Reddix v. Thigpen, 728 F.2d 705, 709 (5th Cir.1984)); and Cantu v. State, 939 S.W.2d 627, 645 (Tex.Crim.App.1997)(“Both Tison and Enmund were concerned with the implementation of the death penalty on defendants who were not proven to have an intent to kill.”). Therefore, Clark's argument based on Enmund and Tison with respect to this instruction is without merit.

FN2. Texas Penal Code § 7.02(b) provides: “If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.”

Secondly, Clark contends that Special Issue Number Two, given during the sentencing phase, dispensed with the requirement of finding specific intent by allowing the jury to sentence Clark to death on the basis that he “anticipated” a human life would be taken. Relying on Texas Criminal Procedure Article 37.071, the state court gave the following instruction:

Do you find from the evidence beyond a reasonable doubt that the defendant, James Lee Clark, actually caused the death of Shari Catherine Crews, the deceased, on the occasion in question, or if he did not actually cause the decedent's death, that he intended to kill the deceased or another, or that he anticipated that a human life would be taken?

You are instructed that in answering this issue only the conduct of the defendant can be considered, and that the instruction pertaining to the law of parties heretofore given you cannot now be considered in answering this issue.

The jury unanimously answered yes, and subsequently, Clark was sentenced to death. In an unpublished decision affirming the conviction and sentence, the Texas Court of Criminal Appeals stated, “The principle is well-established that when a jury returns a general verdict and the evidence is sufficient to support a finding of guilt under any of the allegations submitted, the verdict will be upheld.” Looking at the evidence, the court determined that it was sufficient to support the theory that Clark murdered Crews during the course of committing a sexual assault.FN3

FN3. In a habeas proceeding with no evidentiary hearing, the state court denied Clark's petition for relief on this issue by summarily relying on Lawton v. State, 913 S.W.2d 542 (Tex.Crim.App.1995). The court stated, “[T]hat the jury may have found that appellant only anticipated that death would result under Article 37.071 is inconsequential to Enmund and Tison concerns; the jury had already found that appellant intended to at least promote or assist in the commission of an intentional murder.” 913 S.W.2d at 555. However, Lawton is inapplicable because its holding concerned felony murder. Furthermore, the dicta which the state court cites is also inapplicable because it quotes Texas Penal Statute 7.02(a)(2) (“A person is criminally responsible for an offense committed by the conduct of another if: ... (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense ...”), not section 7.02(b), which is in dispute.

Clark's jury rendered a general verdict. As such, we cannot be confident that the jury did not convict Clark based on his liability as a co-conspirator in the sexual assault or robbery of the victim. “But the conclusion that the jury may not have found that the defendant killed, attempted to kill, or intended a killing take place or that lethal force be employed does not end the inquiry into whether Enmund bars the death sentence; rather it is only the first step.” Bullock, 474 U.S. at 384, 106 S.Ct. 689. Reversing the Fifth Circuit, the Supreme Court specifically rejected the argument that a jury alone must make the Enmund determination. See id. “Rather, the [federal habeas] court must examine the entire course of the state-court proceedings against the defendant in order to determine whether, at some point in the process, the requisite factual finding as to the defendant's culpability has been made. If it has, the finding must be presumed correct.” Id. at 387-88, 106 S.Ct. 689. The necessary finding of intent under Enmund may be made by a trial court or an appellate court. Id. at 389, 106 S.Ct. 689.

The findings of the Texas Court of Criminal Appeals are constitutionally sufficient under Enmund and Tison. Pursuant to Clark's argument that there was insufficient evidence to support a conviction of capital murder, the court found that “a rational trier of fact could have found the essential elements of murder in the course of aggravated sexual assault.” The court pointed to the DNA evidence linking Clark to the sexual assault and blood spatter evidence linking Clark to the murder and then concluded that the evidence was sufficient to prove murder during a sexual assault. On a related issue of future dangerousness, the court further found that Clark assaulted and executed Crews. (“They [Clark and Brown] made the girl strip and apparently tied her hands with her own bra and then appellant [Clark] brutally sexually assaulted her-both vaginally and anally. Appellant then put the shotgun to her head and executed her.”) These findings show specific intent under Enmund or at the very least, major participation in the felony committed with reckless indifference to human life under Tison. 458 U.S. at 797, 102 S.Ct. 3368, 481 U.S. at 158, 107 S.Ct. 1676. Thus, under the principles of Bullock, there has been a “determination from [Texas'] own courts of the factual question whether [Clark] killed, attempted to kill, intended to kill, or intended that the lethal force would be used.” 474 U.S. at 392, 106 S.Ct. 689. See also Stewart v. Collins, 978 F.2d 199 (5th Cir.1992)(upholding a capital murder conviction and sentence on the basis of the jury verdict and answers to the special issues along with findings of the Court of Criminal Appeals). Clark has not made a substantial showing of a denial of a constitutional right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments, and no COA will issue.

c) Jury instruction due process violation claim.

Clark argues that the trial court's failure to instruct the jury that he would not be eligible for parole for thirty-five years if sentenced to life imprisonment violated Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). However, Clark's claim is barred under the non-retroactivity limitation in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). As a threshold matter, a state prisoner must demonstrate that the rule of which he seeks benefit is not “new.” O'Dell v. Netherland, 521 U.S. 151, 156, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). A rule is new if it “breaks new ground,” “imposes a new obligation on the States or the Federal Government,” or was not “dictated by precedent existing at the time the defendant's conviction became final.” Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993)(citing Teague, 489 U.S. at 301, 109 S.Ct. 1060).

Clark urges us to adopt a rule that would allow him to present evidence concerning his thirty-five year ineligibility for parole. This rule is certainly new as Simmons was based on lifetime parole ineligibility. 512 U.S. at 169, 114 S.Ct. 2187. See also Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 2121, 147 L.Ed.2d 125 (2000)(“Simmons applies only to instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison.”). Because this new rule fails to meet the narrow exceptions of Teague, namely rules forbidding punishment of certain primary conduct or watershed rules of criminal procedure, it may not be applied retroactively to Clark's trial. See also Allridge v. Scott, 41 F.3d 213, 222 n. 11 (5th Cir.1994)(“Specifically, if we were to conclude ... that due process entitles a capital defendant to introduce evidence of parole ineligibility whenever the state argues the defendant is a future danger, regardless of whether the state statutorily provides for parole ineligibility, such a conclusion certainly would constitute a ‘new rule’ and therefore would be barred under Teague.”). Accordingly, Clark has failed to make a substantial showing of the denial of constitutional right of due process on this claim, and no COA will issue.

d) Ineffective assistance of counsel claims.

To prevail on an ineffective assistance of counsel claim, Clark must show that his counsel's performance was deficient and that the deficiency prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel's performance is deficient when the representation falls below an objective standard of reasonableness. See id. and Davis v. Johnson, 158 F.3d 806, 812 (5th Cir.1998). In assessing counsel's performance, we must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. There is a strong presumption that counsel's conduct falls within the wide range of objectively reasonable conduct. See id.

To establish that the counsel's deficiency prejudiced his defense, Clark “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

1. Ineffective assistance of counsel on direct appeal.FN4

FN4. This Circuit's decision in Jackson v. Johnson, 217 F.3d 360 (5th Cir.2000), forecloses the retroactivity issue presented by Teague v. Lane, which prevented granting habeas relief based on a rule announced after a defendant's conviction. The Fifth Circuit found that a claim of ineffective assistance of counsel based on a failure to file for rehearing was a narrow exception to Teague. 217 F.3d at 364.

Clark argues that he was denied his right to counsel in preparing a motion for rehearing to the Court of Criminal Appeals and a writ of certiorari to the United States Supreme Court.FN5 This argument is unsupported as the Supreme Court has not extended the right of counsel to discretionary review. Due process does require the appointment of effective counsel for a criminal appellant pursuing a first appeal of right. Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). However, Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), held that it was constitutional under due process to not provide counsel on discretionary appeal.FN6 The Texas Constitution provides, “The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals.” Tex. Const. Code Ann. Art. 5, § 5 (West 2000). Therefore, the right of appeal is to the Court of Criminal Appeals, and not for a petition for rehearing to that court or a petition to the United States Supreme Court. See Ayala v. State, 633 S.W.2d 526, 528 (Tex.Crim.App.1982)(holding that “[i]ndigent appellants are not deprived of the effective assistance of counsel if appointed counsel fail to file a petition for discretionary review of a court of appeals' decision.”)(citing Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982)). The Supreme Court itself has defined its review as discretionary and found the argument that a state should provide counsel to one petitioning the Court to be “unsupported by either reason or authority.” Ross v. Moffitt, 417 U.S. at 616-17, 94 S.Ct. 2437. Furthermore, the Fifth Circuit has pointedly stated, “[T]here can be no question that the granting of a motion for rehearing lies entirely within the discretion of a court of appeals. Rehearing at that point is by no means an appeal of right.” Jackson, 217 F.3d at 365. Also, a Texas court has held that because there is no right to counsel for a discretionary review, the appellate counsel has no duty to even advise the appellant about the merits of the review. Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App.1997). Accordingly, Clark has failed to make a substantial showing of the denial of a constitutional right on this claim as there is no constitutional right, and no COA will issue.

FN5. Because there is no constitutional right to counsel for discretionary appeals, we need not analyze this claim under Strickland. FN6. “The defendant needs an attorney on appeal not as a shield to protect him against being ‘haled into court’ by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt.” 417 U.S. at 610-11, 94 S.Ct. 2437. However, in Blankenship v. Johnson, 118 F.3d 312, 317 (5th Cir.1997), the Fifth Circuit found a right to counsel on state-requested discretionary review.

2. Ineffective assistance of counsel at punishment phase of trial.

Clark argues that he was denied effective assistance of counsel at the punishment phase of his trial when appointed counsel failed to present any available evidence at the punishment phase. The defendant bears the burden of showing by a preponderance of evidence that he was deprived of the right of effective counsel. Martin v. Maggio, 711 F.2d 1273, 1279 (5th Cir.1983). “Failure to meet either the deficient performance prong or the prejudice prong will defeat a claim for ineffective assistance of counsel.” United States v. Stewart, 207 F.3d 750 (5th Cir.2000).

Clark fails to meet his burden of proof for both prongs of the test. First he fails to show deficient performance. Clark argues that it was an unsound trial strategy to not call subpoenaed witnesses, but he does not explain who was subpoenaed and the importance of their testimony. The record only indicates that Clark had an extensive criminal record; thus, it appears counsel made a “strategy choice ... well within the range of professionally reasonable judgments.” Strickland, 466 U.S. at 699, 104 S.Ct. 2052. See Jones v. Thigpen, 788 F.2d 1101 (5th Cir.1986)(finding failure to present mitigating factors of youth and mental retardation was deficient performance). Furthermore, Clark himself testified that he made the decision not to call any witnesses after talking with his attorneys the day before. “ ‘[M]eaningful discussion with one's client’ is one of the ‘cornerstones of effective assistance of counsel.’ ” Martin, 711 F.2d at 1280 (citing Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978)). Secondly, Clark attempts to argue that a failure to put on evidence constitutes a constructive denial of counsel and thus prejudice is presumed. However, there is a “strong presumption of reliability” attached to judicial proceedings. Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 1037, 145 L.Ed.2d 985 (2000). Unlike in Flores-Ortega, where counsel neglected to file a notice of appeal, Clark's counsel subpoenaed witnesses in preparation, but ultimately allowed Clark to decide whether to present them. These actions do not constitute a denial of counsel, actual or constructive. Even if we assume Clark's counsel's performance was defective, Clark has failed “to show the existence of evidence of sufficient quality and force to raise a reasonable probability that, had it been presented to the jury, a life sentence would have resulted.” Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir.1992). Accordingly, Clark has failed to make a substantial showing of the denial of a constitutional right on this claim, and no COA will issue.

e) Evidentiary hearing claim.

AEDPA governs requests for evidentiary hearing under 28 U.S.C. § 2254(e)(2).FN7 After that standard is met, the district court's denial is reviewed for abuse of discretion. Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir.2000). Assuming Clark meets the AEDPA standard because he was denied a hearing in state court, see id. at 815, nevertheless, the district court did not abuse its discretion in failing to grant a hearing. Our resolution of the issues demonstrates that Clark has failed to show a significant factual dispute on his Brady claim that could be addressed by a hearing, and failed to show how his claim of ineffective assistance of counsel would be advanced by a hearing. No COA will issue on the refusal of the district court to hold an evidentiary hearing.

FN7. “If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”

III. CONCLUSION

For the foregoing reasons, we deny Clark's request for a COA on all issues. Application DENIED.

Clark v. Quarterman, 457 F.3d 441 (5th Cir. 2006) (Federal Habeas).

Background: Defendant convicted of capital murder in state court and sentenced to death petitioned for federal habeas relief. The United States District Court for the Eastern District of Texas, David Folsom, J., denied relief. Defendant appealed.

Holding: The Court of Appeals, Dennis, Circuit Judge, held that state court did not unreasonably determine that defendant did not have significantly subaverage intellectual functioning, as required to find him mentally retarded under state law and preclude his execution. Affirmed.

DENNIS, Circuit Judge:
The defendant, James Lee Clark, has filed a successive habeas petition in this case, arguing that the evidence presented to the state courts established that he suffers from significantly sub-average intellectual functioning to the point of mental retardation and thus may not be executed. The district court concluded that the state court did not err in finding that Clark had failed to establish that he had significantly sub-average general intellectual functioning, the first element of the Texas test for mental retardation, and did not proceed further to the other elements. Clark argues that the district court erred in upholding the state court's findings on that element and erred in refusing to consider Clark's arguments as to the other elements of the test. Upon our review, we determine that the district court did not err in affirming the state court as to the “significantly sub-average intellectual functioning” element of mental retardation and that the district court did not err in considering only that element.

* * *

Initially, we note that Clark is incorrect in arguing that the district court erred in failing to address the other elements of mental retardation under the Texas definitions after it had determined that the state court did not err in finding that Clark did not have significantly sub-average intellectual functioning.

The Texas Court of Criminal Appeals adopted two definitions of mental retardation in the aftermath of Atkins, both of which contain the same substantive elements. The first, the AAMR definition, defined mental retardation as a disability characterized by “(1) ‘significantly subaverage’ general intellectual functioning; (2) accompanied by ‘related’ limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18.” Ex parte Briseno, 135 S.W.3d 1, 7 (Tex.Crim.App.2004). The second, from the Texas Health and Safety Code, requires “significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.” Id. It is plain from the use of the words “accompanied by” and “concurrent” that both of these definitions require that all three elements exist to establish mental retardation. It therefore was not in error for the district court to determine that Clark could not prevail once it had already held that the state court had not erred in holding that Clark failed to meet the first element. If the state court correctly found that Clark failed to meet any of the three elements, he cannot demonstrate mental retardation under the Texas definitions.

We agree with Clark's contention that the question of whether he suffers from significantly subaverage intellectual functioning is a question of fact, and not a mixed question of law and fact as determined by the district court. See United States v. Webster, 162 F.3d 308, 351-52 (5th Cir.1998) (discussing, in the context of the Federal Death Penalty Act, that the judge may act as fact-finder on the issue of mental retardation). However, Clark also raises the separate, legal question of whether federal law permits the state court the discretion to choose as the relevant score the base IQ score or the low point on the range that the score represents.

We review questions of law to determine whether the State court adjudication “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.” 28 U.S.C. § 2254(d)(1). But we review questions of fact for whether the state court decision was based upon “an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d)(2). The burden is on Clark to rebut the state court's determination with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Clark raises issues with respect to each of the three elements of mental retardation in Texas. With respect to the first element, the question of whether Clark had significantly subaverage intellectual functioning, Clark argues that the state court erred in considering the numerical IQ scores of Clark's tests instead of the “confidence band,” or range of potential “true” scores someone with Clark's score falls within. This confidence band is designed to account for the measurement error inherent in intelligence testing, and indicates the upper and lower scores between which a psychologist conducting the test can be ninety-five percent confident that the “true” score lies.

The Texas Court of Criminal Appeals held when adopting its tests for mental retardation that scores gathered through intelligence testing are necessarily imprecise and must be interpreted flexibly. Briseno, 135 S.W.3d at 7, n. 24. The testing error, coupled with the differences between various IQ tests, mean that in many cases an individual who tests as having an IQ above 70, the rough cut-off for mental retardation, may still be diagnosed as mentally retarded, and vice versa. Id. Under this approach, courts should not rigidly consider an IQ score to be determinative of the defendant's intellectual functioning.

To support his argument that the state court erred in choosing his base IQ score as the relevant IQ score rather than the lowest number in the confidence band, Clark argues that the Texas courts must apply the approach articulated by the American Association on Mental Retardation (“AAMR”), which dictates that IQ examiners account for the appropriate confidence band. He argues that the AAMR approach is the proper standard for determining whether an individual has subaverage intellectual functioning. Clark is thus asking us to consider whether the Texas courts were properly given the discretion to choose between a base IQ score and a confidence band, see Briseno, 135 S.W.3d at 14 n. 53.

The Supreme Court, in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), “[left] to the State[s] the task of developing ways to enforce the constitutional restriction upon [their] execution of sentences.” Id. at 317, 122 S.Ct. 2242. Although the Court did refer to the clinical definitions of mental retardation promulgated by the AAMR and the American Psychiatric Association (“APA”), it did not dictate that the approach and the analysis of the State inquiry must track the approach of the AAMR or the APA exactly. It also did not mention the portion of the AAMR Manual upon which Clark relies in his argument. Therefore it is not “clearly established Federal law as determined by the Supreme Court of the United States” that state court analysis of subaverage intellectual functioning must precisely track the AAMR's recommended approach. See 28 U.S.C. § 2254(d)(1).

Under the definition of mental retardation as established by the Texas Court of Criminal Appeals, the state court did not unreasonably determine the facts in light of the evidence relating to Clark's intellectual functioning. The court was confronted with multiple IQ tests taken by Clark. The first, taken in November of 1983 when Clark was 15, measured his IQ at 74. The “true” IQ range indicated by the confidence band for this test was 69 to 79. On April 17, 2003, after the Atkins decision, Clark took another test which measured his IQ at 65. The confidence band of this test indicated that his IQ ranged from 60 to 70. On June 5, 2003, Clark took a third IQ test which measured his IQ at 68, with a confidence range of 64 to 72.

Clark contends that the state court acknowledged the confidence bands, but “simply chose not to apply the standard error of measurement to Clark's IQ score of 74.” This is incorrect. Regarding the 1983 IQ test, the state court noted that the test showed Clark's IQ to be “in the range of 69 to 79.” More important to the state court were its findings based on its evaluation of expert testimony on the IQ tests. The court evaluated both of the tests administered to Clark in 2003, and it found that these specific tests were subject to manipulation that would result in lower scores and that in 2003 Clark had motivation to lower his scores deliberately. The court also found that there was an unusual discrepancy in Clark's subscores on one of the 2003 tests indicating a higher IQ. The court further found that the 1983 score was considered reliable by Clark's experts and that the psychologist who conducted the test noted based on his observations that Clark's intellectual functioning fell between the dull average and average range.

Clark has not challenged any of these findings, and instead asserts only that it was error for the state court to find mental retardation where the lowest potential score in the confidence band of the 1983 test was below 70. The explanation provided by the Texas Court of Criminal Appeals in adopting its definition of mental retardation plainly forecloses this argument. Briseno, 135 S.W.3d at 7, n. 24. The state court was required to evaluate the intelligence testing and make a flexible determination based on those tests as to whether Clark had “significantly subaverage general intellectual functioning.” The court was not required to find Clark to be mentally retarded merely because the low end of Clark's confidence band was below 70, just as it would not be required to find that Clark could be executed on the basis that the high end of this band fell above 70. Clark thus has not shown that the state court made an unreasonable determination of the facts in light of the evidence as to the first element of mental retardation.

While, as discussed above, all three elements of mental retardation must be shown in order to meet the Texas definition, we review Clark's arguments as to the other elements out of an abundance of caution and because the evidence as to these elements is informative as to the state court's belief that Clark may have attempted to manipulate his 2003 IQ scores.

Clark has challenged the state court's finding that he did not have adaptive deficits. Clark argues here that “limitations often coexist with strengths” and that the state court erred in dismissing adaptive behavior testing and relying “exclusively upon the court's own interpretation of lay testimony about Clark's adaptive strengths.”

The record shows that the state court made a number of findings of fact that support its finding that Clark did not have significant limitations in his adaptive skills. The court found that records from Clark's youth showed that he completed his GED with improving grades after initial problems, that he completed a welding program at Cooke County College in 1985, that he was employed by the Gainesville State School with numerous duties and positive reports from supervisors, and that he was able to get along with other people.

The state court also heard testimony from Clark's former landlord that he was a tenant of a mobile home park, where he was paying his own bills, doing chores in exchange for rent reduction, playing cards, and successfully socializing with others. The landlord testified that he followed the rules of the park, kept his mobile home clean and cut the nearby grass, and was able to both drive a car and follow the speed limits of the park. The landlord's daughter testified to similar activities by Clark, and added that they had conversed on a number of occasions without difficulty.

A Texas Ranger who investigated the case testified that he interviewed Clark for several hours without noticing any difficulty by Clark in understanding the questions. He stated that Clark was able to think on his feet, modifying his story in response to inconsistencies that were pointed out to him. He further testified that Clark's actions in the crime included several that showed adaptive functioning, including removing the butt stock of his gun to make it easier to conceal, purchasing ammunition for the gun, practicing with the gun, and removing evidence from the scene and concealing it. He testified that his investigation of Clark showed no evidence of adaptive limitations or problems meeting basic human needs.

The court listened to testimony from several other officers and prison officials who had interacted with Clark. It also heard testimony from the warden's secretary, responsible for handling inmate requests, and found that several of Clark's written requests indicate adaptive skills ranging from average to sophisticated.

Clark has not challenged the accuracy of any of these findings, but instead argues only that they do not support the state court's determination that Clark did not have adaptive deficits because they are evidence of strengths and not limitations. This is incorrect-evidence of a strength in a particular area of adaptive functioning necessarily shows that the defendant does not have a weakness in that particular area. Even if, as Clark argues, adaptive limitations rather than strengths often define mental retardation, the evidence in this case shows primarily adaptive strengths and does not show limitation in any significant area. The evidence in this case showed that prior to being incarcerated, Clark functioned normally across a broad range of adaptive behaviors. Our review of the evidence of Clark's behavior in prison casts serious doubts on his claims of adaptive limitation, as evidence collected from his cell along with his handwritten requests include complaints that he needed a technician to fix his television as it had been several “weeks now of no reception via my coaxial cable hooked up to the jack on the wall;” a handwritten diet plan entitled “Eat to Beat Stress” noting that he should “eat small meals and snacks several times a day to keep blood sugar from fluctuating” as well as notes about the effects of various chemicals such as folic acid, pyridoxine, and thiamine; handwritten puzzles including the decipherment of several extremely complicated codes; and complaints about delays in approving his request for a legal visit with another inmate in which Clark planned to assist the inmate in obtaining parole.

Clark faults the failure of the state court to credit an adaptive behavior assessment administered at age 34 which attempted to retroactively determine his abilities at age 25. The court found that the test was unreliable because it relied on Clark's self-reporting of his adaptive limitations coupled only with his ex-wife's memories about what he could and could not do at age 25. The court found that this testing was unreliable because it did not account for the incentive of Clark and his ex-wife to misreport Clark's adaptive skills and did not take into account Clark's prior employment and the written materials he produced during prison. The court heard the testimony of the State's expert claiming Clark did not display limitations in adaptive functioning. This expert reviewed the testing results along with the various testimony and documents and was judged more credible by the state court. The findings by the state court on the issue of adaptive functioning have not been rebutted by clear and convincing evidence, and its determination that the evidence of Clark's actual behavior was more credible than the adaptive behavior assessment administered to Clark was not unreasonable in light of the evidence presented.

Finally, Clark objects that as to the third element of retardation, onset before the age of 18, the state court again erred in its factual finding that Clark did not show onset before the age of 18. Clark points to the opinions of his expert witnesses, his failure of several grades, and his participation in special education classes in school. While the state court provides less support for its determination on this issue, pointing only to documents about Clark produced by the Texas Youth Council when he was age 15, Clark has not rebutted these findings by clear and convincing evidence. The TYC documents describe Clark as a troubled child with intellectual potential between the dull average and average range. The TYC conducted an IQ test which, as the state court determined under the first element, showed that at age 15 Clark was not mentally retarded. The state court did not make an unreasonable determination of the facts in light of the evidence as to the age of onset element.

Because Clark has not shown by clear and convincing evidence that the state court made unreasonable factual determinations in light of the evidence presented, we AFFIRM the decision of the district court.


Since 1976	Date of Execution	State	Method	Murderer (Race/Sex/Age at Murder-Execution)	Date of Birth	Victim(s) (Race/Sex/Age at Murder)	Date of Murder	Method of Murder	Relationship to Murderer	Date of Sentence
1070	04-11-07	TX	Lethal Injection	James Lee Clark W / M / 25 - 38	05-13-68	Shari Catherine Crews W / F / 17	06-07-93	Shotgun	None	05-03-94