Friday, October 19, 2012
Media Advisory: Bobby L. Hines scheduled for execution

AUSTIN – Pursuant to a court order by the 2nd Criminal District Court in Dallas County, Bobby Lee Hines is scheduled for execution after 6 p.m. on October 24, 2012. In March 1992, Hines was convicted of the capital murder of Michelle Wendy Haupt and sentenced to death by a Dallas County jury.

FACTS OF THE CASE

The U.S. Court of Appeals for the Fifth Circuit described the murder of Wendy Haupt as follows:

On October 19, 1991, Mary Ann Linch went to the apartment of her friend Michelle Wendy Haupt in Carrollton, Texas, to spend the weekend. Linch brought with her a Marlboro cigarette carton in which only four packs remained. She had purchased the cigarettes at Brookshires’ in Corsicana, Texas, and the carton contained a stamp showing “Brookshires’ Store” on the side. Linch left the carton at Haupt’s when they left that evening to go to a nightclub. Linch had intended to return to Haupt’s, but instead spent the night with another friend.

Linch testified that when they went to the club, Haupt was wearing a gold sand-dollar charm necklace which she always wore. During the evening, Haupt became ill. Another friend drove Haupt back to her apartment and then left. He testified that Haupt locked the door behind him. Meanwhile, at Haupt’s apartment complex, Hines appeared uninvited at a party. When the hostess asked him who he was, he identified himself as the brother of the apartment manager. He told another guest that he was part of the maintenance crew at the complex. He pulled out a ring of keys and stated that he could get into any apartment he wanted to at any time.

At approximately 6:00 a.m. on October 20, 1991, Haupt’s next-door neighbor heard a woman screaming. He could not determine the source of the screams, but his wife called the police. Two police officers were dispatched to the scene, but the screaming had ended before they arrived. After inspecting the premises, the officers could not determine where the screams had come from and they eventually left. Two other residents in the apartment directly below Haupt’s also heard screaming loud enough to awaken them. One of the residents testified that he also heard other loud noises that sounded “like a bowling ball being dropped on [Haupt’s] floor.” He heard this noise at least 20 times. The screaming lasted for approximately 15 minutes. The resident of an adjacent downstairs apartment also heard the screaming. Just before noon that morning, the residents discussed what they had heard and became concerned for Haupt. Eventually, the apartment leasing manager was persuaded to check Haupt’s apartment. After knocking and receiving no answer, the manager opened the door and saw Haupt lying on the floor just inside the door. The cord was around her neck … and she appeared to be dead. The manager had someone call an ambulance.

Haupt was found dressed in only a robe and lying face up on the floor. There were puncture wounds to her chest area and the cord from the stereo was wrapped around her neck. The robe was stained with blood, but it had no holes to correspond with the puncture wounds to Haupt’s body, indicating the robe was placed on her body after the wounds were inflicted. Further, the belt to the robe was tied tighter than a person would normally tie it against her own body. An object appearing to be an ice pick was found on the nearby couch. Hines’ fingerprint and bloody palm print were found within the apartment.

Dr. Jeffrey Bernard, the Dallas County Chief Medical Examiner, testified that the cause of Haupt’s death was strangulation and puncture wounds. She had stereo speaker wire drawn tightly around her neck, abrasions to her neck and jaw, contusions on her neck and a fractured hyoid bone. She had approximately 18 puncture wounds … [and] hemorrhaging. Barnard testified that the puncture wounds could have been made by the object found on the couch.

Later the same day, Hines was found to be in possession of Haupt’s gold sand-dollar charm. He had blood on some of his clothing, as well as scratches under his eye, and on his neck and cheek. Other objects from Haupt’s apartment, including the Brookshires’ cigarette carton, were found under the couch where Hines had been sleeping.

PROCEDURAL HISTORY

On October 21, 1991, Hines was charged by an indictment filed in the 204th District Court of Dallas County, Texas, with the capital crime of knowingly and intentionally causing the death of Michelle Wendy Haupt by strangulation and stabbing, during the course of committing burglary of Haupt’s habitation.

In March 1992, Hines was convicted and sentenced to death for the October 20, 1991, murder.
On May 10, 1995, the Texas Court of Criminal Appeals affirmed Hines’s conviction and sentence.
On February 24, 1999, the Texas Court of Criminal Appeals denied his petition for writ of habeas corpus.
On January 22, 2002, the U.S. District Court denied a petition for federal writ of habeas corpus.
On December 31, 2002, the Fifth Circuit Court of Appeals also denied a COA.
The U.S. Supreme Court denied certiorari review on October 6, 2003.
An execution date was scheduled for December 11, 2003, but was stayed on December 9, 2003.
On November 23, 2005, the Texas Court of Criminal Appeals denied Hines’s mental retardation claim.
On February 2, 2006, Hines received authorization from the Fifth Circuit to appeal.
On August 26 and 27, 2009, U.S. Magistrate Kaplan held an evidentiary hearing on retardation claim.
On March 22, 2010, Magistrate Kaplan recommended that relief be denied.
On August 18, 2010, the district court adopted those findings and denied relief with prejudice.
The district court denied Hines’s motion to alter and amend judgment on April 4, 2011.
The Fifth Circuit denied Hines’s subsequent request for a COA on December 27, 2011.
The Supreme Court denied Hines’s petition for writ of certiorari on May 14, 2012.
An execution date for June 6, 2012 was voluntarily withdrawn to conduct DNA testing on fingernail.
The trial court reset his execution date for October 24, 2012.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the penalty phase of Hines’s trial, the State presented evidence that Hines was removed from high school for pulling a knife and trying to cut another student after the student refused to give Hines a sheet of paper. Hines threatened to kill the student, and had to be forcibly removed from the classroom and restrained in the principal’s office. The principal felt Hines presented a danger to other students and staff. Hines had been in trouble in school on several other occasions, and had exhibited prejudice against minorities.

A police officer testified that Hines has a bad reputation for being a peaceful and law-abiding citizen. Hines’s former juvenile probation officer, Gary Marlowe, testified: • Hines was referred to Marlowe who counseled and released him in April 1985; • shortly thereafter, Hines was placed on an “informal adjustment,” where the parents, the offender, and the probation officer agree to contractual conditions in an effort to avoid court; • in February 1986, Hines was placed on juvenile probation for the school fight; • in April 1986, Hines escaped custody while being transported from a detention facility in Texarkana, where he was being held for possession of a stolen car. As a result of the escape, Hines was placed in the Texas Youth Commission (TYC); • in January 1989, Hines was committed to TYC again after he attacked an elderly lady and burglarized a church; and • Hines was a legitimate risk to society, was dangerous and unpredictable, and Hines falls into a category of persons who is likely to commit further acts of violence.

The jury also learned that in May 1990, Hines pled guilty to burglary of a building and was sentenced to 10 years of probation to begin after completing boot camp. In October 1990, Hines again pled guilty to burglary of a habitation and was placed on 10 years of probation.

Texas Execution Information Center by David Carson.

Bobby Lee Hines, 40, was executed by lethal injection on 24 October 2012 in Huntsville, Texas for the murder and robbery of a woman in her apartment.

On 19 October 1991, Mary Linch drove in from out of town to visit her friend, Michelle Haupt, for the weekend at Haupt's apartment in Carrollton, a suburb northwest of Dallas. In the evening, they left Haupt's apartment to go to a nightclub. While they were there, Haupt, 26, became ill. A friend drove Haupt back to her apartment. Linch had originally intended to return to Haupt's for the night, but she changed her mind and spent the night with another friend instead.

That same evening, Hines, then 19, appeared uninvited at a party in Haubt's apartment complex. When the hostess asked him who he was, he said he was the brother of the apartment manager. He told another guest that he was part of the maintenance crew at the complex. He pulled out a ring of keys and stated that he could enter any unit at any time.

At about 6:00 the next morning, Haupt's next-door neighbor heard a woman screaming. His wife called the police. Two officers arrived after the screaming had stopped. The neighbor was uncertain where the screams had come from, and the officers eventually left. Later that morning, other residents discussed what they had heard, and they became concerned for Haupt. The apartment manager decided to check her apartment. After knocking and receiving no answer, the manager opened the door and found Haupt lying on the floor, just inside the door, with wires wrapped around her neck and apparently dead. The manager had someone call an ambulance.

Haupt was found lying face up, wearing only a robe that was tied on tightly. She had 18 puncture wounds on her body, but the robe had no corresponding puncture holes, indicating that it had been put on her after she was stabbed. Stereo speaker wires were drawn tightly around her neck. She had abrasions to her neck and jaw, contusions on her neck, and a fractured hyoid bone. An object resembling an ice pick was found nearby on the couch. The medical examiner testified that the puncture wounds could have been made by that object. A bloody fingerprint and palm print were also found within the apartment.

Hines, the apartment manager's brother, had been staying next door to Haupt, in the unit belonging to the maintenance man. He was arrested that afternoon. He was found with blood on his clothing and with scratches under his eye and on his neck and cheek. He had a gold sand dollar charm necklace in his pants pocket. A bowl of pennies and a Marlboro cigarette carton containing four packs were found under the couch where he had been sleeping. The cigarette carton had a stamp on it reading "Brookshires' Store".

At Hines's trial, Mary Linch testified that she had brought a Marlboro cigarette carton with her, which she purchased at a Brookshires store in Corsicana. She testified that the carton had four packs remaining in it, and she left it at Haupt's apartment when they went out for the evening. She also testified that when they went to the club, Haupt was wearing a gold sand dollar charm necklace. Two residents who were in the unit directly below Haupt's testified that on the morning of the murder, they were awakened by loud screaming from above. They heard a noise sounding "like a bowling ball being dropped on [the] floor" at least twenty times. The screaming lasted for approximately fifteen minutes.

Testimony at Hines's punishment hearing indicated that at age 13, he pulled a knife on another student in school and threatened to kill him because the student refused to give him a sheet of paper. He was placed on juvenile probation. He subsequently escaped from custody, stole a car, attacked an elderly woman, and burglarized a church.

As an adult, Hines pleaded guilty to two separate charges of burglary of a building. He received a ten-year prison sentence for the second offense. He was released, however, on "shock probation" in October 1990, after serving only three months. (At the time, early prisoner release was common in Texas due to strict prison population caps imposed by U.S. District Judge William Wayne Justice.)

A jury convicted Hines of capital murder in March 1992 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in May 1995. All of his subsequent appeals in state and federal court were denied. This included an evidentiary hearing in August 2009 which determined that he was not mentally retarded. Hines had previously been scheduled for execution in June 2012, but the prosecutor voluntarily postponed the execution so that the state could conduct DNA testing on fingernail clippings found on the victim's body. The execution was rescheduled after the DNA test showed a match to Hines.

Hines declined to speak with reporters while on death row, but a letter he wrote was posted to a web site maintained by opponents of the death penalty. In the letter, Hines did not discuss the murder of Michelle Haupt and did not profess either innocence or guilt in the case. Instead, he made a case against being put to death. He wrote that one witness for the state lied about his past criminal record. He also wrote that the "randomly picked out" jurors at his trial were unqualified to determine whether he was a continuing threat to society. "None that I remember were even a doctor of any kind!" he wrote.

In his last statement at his execution, Hines confessed to the murder and asked for forgiveness. "I know that I took somebody special from y'all," he said as Haupt's father watched from a viewing room. "I know it wasn't right; it was wrong. I wish I could give it back, but I know I can't. I wish there was something I could do." Despite admitting guilt, Hines reiterated his belief that he should not be executed. "I don't believe that taking my life will solve anything," he said. "I believe being locked up for the rest of my life, having to think about what I did, that would be more of a punishment. To do this is setting me free."

Hines also expressed love to his family and declared that he was "going home." The lethal injection was then started. He stated that he could feel it, but stopped in mid-sentence as he lost consciousness. He was pronounced dead at 6:28 p.m.

Huntsville Item

"Inmate apologizes before execution, by Cody Stark. (October 24, 2012)

HUNTSVILLE — The family of Michelle Wendy Haupt, who was strangled and stabbed 21 years ago, got an apology from the man responsible for her murder minutes before his own death Wednesday night. Bobby Lee Hines, 40, said he was sorry for what he did and wished he could take it back. “To the victim’s family, I am sure I know that I took somebody special from y’all,” Hines said. “I know it wasn’t right, it was wrong. I wish I could give it back, but I know I can’t. If giving my life in return makes it right, so be it. I ask that y’all forgive me.”

Hines was pronounced dead at 6:28 p.m. Wednesday, 12 minutes after the lethal dose began. He became the 11th inmate to be executed in Texas this year.

Hines was 19 when he used a master key to break into Haupt’s apartment in Carrollton in the early morning hours of Oct. 20, 1991. Other residents in the complex said they heard screaming and other loud noises. The police were called to the scene, but could not locate the origin of the noises. Later in the day, Haupt’s neighbors, concerned for her safety, convinced the apartment manager to check on her. Haupt was found dead on the floor of her home with a cord wrapped around her neck and 18 puncture wounds to her body.

Hines was arrested that day. His older brother, who worked at the complex, told officers he thought his brother was involved. Witnesses also told investigators that the night before the murder, Hines was seen bragging at a party in the complex that he had a key that could open any unit. Police interviewed Hines, noticed he had scratches on his face and neck and got consent from his roommate to search the apartment, where Hines slept on a couch. Detectives found Haupt’s blood on Hines’ clothing and several things that had belonged to her, including a distinctive gold charm she wore on a necklace.

Before his execution Wednesday, Hines said he thought there was another form of punishment that would be more severe than death. “I don’t believe that taking my life will solve anything,” he said. “I believe being locked up for the rest of my life, having to think about what I did, that would be more of a punishment. To do this is setting me free.”

Hines was tried and convicted in March 1992, five months after the crime. He initially was scheduled to die in 2003, but his execution was delayed for eight years until the courts resolved claims that he was mentally impaired and, thus, ineligible for capital punishment. He was scheduled to die in May and the U.S. Supreme Court refused to review his case, but the Dallas County district attorney’s office again delayed the execution so that new DNA testing could be conducted. When those tests confirmed Hines’ guilt, the punishment was reset for Wednesday.

Relatives and friends of Hines filed a federal civil rights lawsuit Tuesday against the Texas Department of Criminal Justice, top agency officials and prison wardens and “all persons involved” in Hines’ execution, contending their rights had been violated because Hines had been on death row more than two decades and that his lawyers had misled him and them. A federal judge in Houston dismissed the suit Wednesday.

Last week, the Texas Court of Criminal Appeals rejected an appeal from Hines, whose lawyer argued Hines’ trial attorneys and attorneys early in his appeals failed to investigate and show how Hines had been abused by his father.

Houston Chronicle

"Texas executes convicted killer for 1991 slaying," by Michael Graczyk. (AP Wednesday, Oct. 24, 2012)

HUNTSVILLE, Texas — Convicted killer Bobby Lee Hines was executed Wednesday for strangling and repeatedly stabbing a suburban Dallas woman at her apartment 21 years ago. Hines, 40, was 19 and on probation for burglary when he stabbed 26-year-old Michelle Wendy Haupt 18 times and strangled her with a cord. Haupt had moved from the Pittsburgh area to Carrollton to work at a computer company in Dallas, and Hines was staying next door with a maintenance man for her apartment complex.

Asked by a warden to make a final statement, Hines repeatedly asked for forgiveness. "I know that I took somebody special from y'all," he said as Haupt's father stood a few feet away, watching through a window. "I know it wasn't right, it was wrong. I wish I could give it back, but I know I can't. "I wish there was something I could do." He said he loved his family, believed life in prison would be a worse punishment, and then declared that he was "going home." As the lethal dose of pentobarbital was administered, he said he could feel it and was stopped in midsentence. He snored once, then slipped into unconsciousness. Twelve minutes later, at 6:28 p.m., he was pronounced dead.

"It's like a backache, it never goes away," Harold Haupt said afterward about the pain of losing his daughter. "It's always there. "On the upside of this, Bobby Hines paid the ultimate price, a life for a life, and that's the good news. The bad news is it took 21 years, a lot of taxpayer money and all he did was go to sleep. He didn't suffer like my daughter did. He got like a forever sleeping pill."

In the pre-dawn hours of Oct. 20, 1991, a neighbor heard screaming and called police, but officers were unable to find the source. When other residents told the apartment manager later that day about screams and loud noises that sounded like a bowling ball being dropped repeatedly, they persuaded him to open Haupt's door and found her dead.

Hines was arrested that day. Hines' older brother, a manager at the complex, told police he suspected his brother was involved, according to court records. And witnesses said Hines had bragged about having a passkey that allowed him to enter anyone's apartment. Police interviewed Hines, noticed he had scratches on his face and neck, and got consent from his roommate to search the apartment. Detectives found Haupt's blood on Hines' clothing and several things that had belonged to her, including a distinctive gold charm she wore on a necklace.

Hines was tried and convicted in March 1992. He initially was scheduled to die in 2003, but his execution was delayed for eight years until the courts resolved claims that he was mentally impaired and, thus, ineligible for capital punishment. He was scheduled to die in May and the U.S. Supreme Court refused to review his case, but the Dallas County district attorney's office again delayed the execution so that new DNA testing could be conducted. Those tests confirmed Hines' guilt, and the punishment was reset.

Relatives and friends of Hines filed a federal civil rights lawsuit Tuesday against the Texas Department of Criminal Justice, top agency officials and prison wardens and "all persons involved" in Hines' execution, contending their rights had been violated because Hines had been on death row more than two decades and that his lawyers had been misleading. A federal judge in Houston dismissed the suit Wednesday.

Last week, the Texas Court of Criminal Appeals rejected an appeal from Hines, whose lawyer argued previous attorneys failed to investigate and show how Hines had been abused by his father. William Hughey, who was one of Hines' trial lawyers and is now a state district judge in East Texas, recalled Hines' case as one "where it was clear his childhood had significant impact as to who he was and how he ended up." Hines, who had declined to speak with reporters, first was arrested at age 12 for auto theft and had other arrests for assault and burglary. He was on 10 years' probation when the slaying occurred.

Hines' execution was the 11th this year in Texas. Another is set for next week.

Reuters News

(Reuters) - Texas prison officials on Wednesday executed a man for the gruesome 1991 murder a women who was stabbed repeatedly with an ice pick and strangled with stereo wire at her Dallas-area apartment, state officials said.

Bobby Lee Hines, aged 19 at the time of the killing, was sharing a next door apartment with a maintenance man who had master keys to all the units in the building, according to the Texas Department of Criminal Justice. Hours after neighbors heard screaming and other loud noises coming from the apartment of Michelle Wendy Haupt, 26, her body was found just inside the door of her unit, covered with about 18 puncture wounds, according to a summary of the case from the Texas attorney general's office.

Hines' fingerprint and bloody palm print were found in the apartment. Haupt's gold sand-dollar charm was found in Hines' pants pocket. Hines was put to death by lethal injection at a state prison in Huntsville, Texas. He was pronounced dead at 6:28 p.m. local time (2328 GMT), said Jason Clark, a spokesman for the criminal justice department. Hines, 40, was the 11th person executed this year in Texas and the 33rd in the United States.

In his final statement, Hines asked Haupt's family for forgiveness, according to a copy of the statement provided by Clark. "To the victim's family, I am sure I know that I took somebody special from y'all," Hines said. "I know it wasn't right, it was wrong." He also said that God has forgiven him and that being locked up for the rest of his life would have been more of a punishment. "I wish there was some other way to show I'm sorry," he said.

Hines' execution was scheduled for earlier this year, but it was postponed so that DNA testing could be conducted on fingernail clippings collected from Haupt's body. The testing did not exclude Hines as a source of the DNA, according to the attorney general's office.

Texas Coalition to Abolish the Death Penalty

ProDeathPenalty.Com

On October 19, 1991, Mary Ann Linch went to the apartment of her friend Michelle Wendy Haupt in Carrollton, Texas, to spend the weekend. Mary Ann brought with her a Marlboro cigarette carton in which only four packs remained. She had purchased the cigarettes at Brookshires' in Corsicana and the carton contained a stamp showing "Brookshires' Store" on the side. Mary Ann left the carton at Michelle's apartment when they left that evening to go to a nightclub. Mary Ann had intended to return to Michelle's, but instead spent the night with another friend.

Mary Ann testified that when they went to the club, Michelle was wearing a gold sand-dollar charm necklace which she always wore. During the evening, Michelle became ill and another friend drove her back to her apartment. When he left, he testified that Michelle locked the door behind him. Meanwhile, at Michelle's apartment complex, Bobbie Lee Hines appeared uninvited at a party. When the hostess asked him who he was, he identified himself as the brother of the apartment manager. He told another guest that he was part of the maintenance crew at the complex. He pulled out a ring of keys and stated that he could get into any apartment that he wanted to at any time.

At about 6 a.m. on October 20, 1991, Michelle's next-door neighbor heard a woman screaming. He could not determine the source of the screams, but his wife called the police. Two police officers were dispatched to the scene, but the screaming had ended before they arrived. After inspecting the premises, the officers could not determine where the screams had come from and they eventually left. Two other residents in the apartment directly below Michelle's also heard screaming loud enough to awaken them. One of the residents testified that he also heard other loud noises that sounded "like a bowling ball being dropped on Michelle's floor." He heard this noise at least 20 times. The screaming lasted for approximately 15 minutes. The resident of an adjacent downstairs apartment also heard the screaming. Just before noon that morning, she and the other residents discussed what they had heard and became concerned for Michelle. Eventually, the apartment leasing manager was persuaded to check Michelle's apartment.

After knocking and receiving no answer, the manager opened the door and saw Michelle lying on the floor just inside the door. A stereo cord was tightly wrapped around her neck, her face was black, and she appeared to be dead. Michelle was found dressed in only a robe and lying face up on the floor. There were puncture wounds to her chest area. The robe was stained with blood, but it had no holes to correspond with the puncture wounds to Michelle's body, indicating the robe was placed on her body after the wounds were inflicted. Further, the belt to the robe was tied tighter than a person would normally tie it against her own body. An object appearing to be an ice pick was found on the nearby couch. Hines' palm print was found inside Michelle's apartment in what appeared to be blood, and his thumbprint was found on the inside of the front door. Later that same day, Hines was found to be in possession of Michelle's gold sand-dollar charm. He had blood on some of his clothing and some other objects from Michelle's apartment, including the Brookshires' cigarette carton, were found under the couch where he had been sleeping.

When Hines was arrested, he had a scratch under his right eye, scratches to the left side of his neck, and a scratch on his cheek. DNA testing conducted on a bloodstain found on Hines' underwear indicated that the blood was consistent with Michelle's blood. The Dallas County Chief Medical Examiner testified that the cause of Michelle's death was strangulation and puncture wounds. Michelle had abrasions to her neck and jaw, contusions on her neck, and a fractured hyoid bone from being strangled. She had about 18 puncture wounds. She had rectal tears with hemorrhaging. Barnard testified that the puncture wounds could have been made by the object found on the couch in Michelle's apartment.

Hines had a string of juvenile convictions. He was arrested for car theft in 1984 at the age of twelve for which he received a year of juvenile probation. His probation was revoked and he was confined for three months in the Texas Youth Commission (TYC). In 1986 he received ten years of juvenile probation for burglary of a building, which was revoked in 1990. He was then confined in TYC for nine months. In February 1986, Hines was placed on juvenile probation for getting into a school fight, and was committed to TYC for assault. He was confined for 6 months and placed on probation, which he violated in 1987. His probation was revoked and he was confined for another 6 months in TYC.

In January 1989, Hines was committed to TYC for attacking an 80-year-old woman and burglarizing a church. In June 1990, Hines received a 10-year prison sentence for a count each of burglary of a habitation and burglary of a building. Under a "shock probation" policy, Hines was sent to prison for 83 days, then released on 10-years probation. Michelle Haupt was murdered one year later.

UPDATE: In February of 1999, the Texas Criminal Court of Appeals denied a habeas corpus appeal from a Dallas County death row inmate convicted of strangling a 26-year-old woman in 1991. The court upheld the death penalty against Bobby Lee Hines who said in his appeal that the autopsy photos used in court were not only irrelevant but "inflammatory and prejudicial" because of their gruesome nature. The pictures used in court included close-up color photos and nudity. The judges decided that since the photos were not enhanced in any way and the nudity did not detract from the wounds, the trial court had not "abused discretion to admit any of the exhibits." Bodily fluids found on a robe the victim was wearing were identified as belonging to Hines.

In his appeal, he asked that the DNA be retested. The court denied his request. Hines came within two days of execution in 2003 before the Texas Court of Criminal Appeals stopped the punishment so he could pursue claims he was mentally impaired and ineligible for the death penalty under Supreme Court guidelines. His appeal before the 5th Circuit was intended to challenge the findings of lower courts that since then have ruled he’s not mentally impaired. The appeals panel said there’s no indication to show the findings were unreasonable and cited a state court opinion that found “broad and consistent evidence that Hines lied frequently and well when his self-interest demanded it.” In June of 2012, Hines had another execution date stayed, this time at the request of prosecutors, to allow time for DNA testing on material found under Michelle's fingernails to be completed. In September, the district attorney's office announced that the tests confirmed Hines's guilt.

Hines v. Cockrell, 57 Fed.Appx. 210 (5th Cir. 2002). (Federal Habeas)

Bobby Lee Hines was convicted of capital murder and sentenced to death by the Texas state courts for the murder of Michelle Wendy Haupt. He now petitions this court for a Certificate of Appealability (COA) to pursue his habeas corpus claims as required by 28 U.S.C. § 2253(c)(1) for claims denied by the district court. Specifically, Hines argues that reasonable jurists would find debatable the district court's conclusions that (1) the trial court did not err in denying Hines a continuance to allow his expert to conduct DNA testing, and (2) that the state habeas court did not err in failing to appoint a DNA expert to aid Hines in preparing his state habeas application. Hines also argues that the district court erred in not giving him funds for an independent DNA test during his federal habeas proceeding as it is permitted to do under 21 U.S.C. § 848(q).FN1 For the reasons below we deny petitioner all relief sought. FN1. Hines does not need a COA to pursue this claim. Fuller v. Johnson, 114 F.3d 491, 501 n. 4 (5th Cir.1997).

I. FACTS AND PROCEDURAL HISTORY

On October 19, 1991, Mary Ann Linch went to the apartment of her friend Michelle Wendy Haupt in Carrollton, Texas to spend the weekend. Linch brought with her a Marlboro cigarette carton in which only four packs remained. She had purchased the cigarettes at Brookshires' in Corsicana, Texas, and the carton contained a stamp showing “Brookshires' Store” on the side. Linch left the carton at Haupt's when they left that evening to go to a nightclub. Linch had intended to return to Haupt's, but instead spent the night with another friend. Linch testified that when they went to the club, Haupt was wearing a gold sand-dollar charm necklace which she always wore. During the evening, Haupt became ill. Another friend drove Haupt back to her apartment and then left. He testified that Haupt locked the door behind him.

Meanwhile, at Haupt's apartment complex, Hines appeared uninvited at a party. When the hostess asked him who he was, he identified himself as the brother of the apartment manager. He told another guest that he was part of the maintenance crew at the complex. He pulled out a ring of keys and stated that he could get into any apartment he wanted to at any time.

At approximately 6:00 a.m. on October 20, 1991, Haupt's next-door neighbor heard a woman screaming. He could not determine the source of the screams, but his wife called the police. Two police officers were dispatched to the scene, but the screaming had ended before they arrived. After inspecting the premises, the officers could not determine where the screams had come from and they eventually left. Two other residents in the apartment directly below Haupt's also heard screaming loud enough to awaken them. One of the residents testified that he also heard other loud noises that sounded “like a bowling ball being dropped on [Haupt's] floor.” He heard this noise at least 20 times. The screaming lasted for approximately 15 minutes. The resident of an adjacent downstairs apartment also heard the screaming.

Just before noon that morning, the residents discussed what they had heard and became concerned for Haupt. Eventually, the apartment leasing manager was persuaded to check Haupt's apartment. After knocking and receiving no answer, the manager opened the door and saw Haupt lying on the floor just inside the door. The cord was around her neck, her face was black, and she appeared to be dead. The manager had someone call an ambulance. Haupt was found dressed in only a robe and lying face up on the floor. There were puncture wounds to her chest area and the cord from the stereo was wrapped around her neck. The robe was stained with blood, but it had no holes to correspond with the puncture wounds to Haupt's body, indicating the robe was placed on her body after the wounds were inflicted. Further, the belt to the robe was tied tighter than a person would normally tie it against her own body. An object appearing to be an ice pick was found on the nearby couch. Hines' fingerprint and bloody palm print were found within the apartment.

Dr. Jeffrey Bernard, the Dallas County Chief Medical Examiner, testified that the cause of Haupt's death was strangulation and puncture wounds. She had stereo speaker wire drawn tightly around her neck, abrasions to her neck and jaw, contusions on her neck and a fractured hyoid bone. She had approximately 18 puncture wounds to her chest, right flank area, her back, the interior wall of her vagina, her left upper extremity, and her right thigh. She further had rectal tears with hemorrhaging. Barnard testified that the puncture wounds could have been made by the object found on the couch.

Later the same day, Hines was found to be in possession of Haupt's gold sanddollar charm. He had blood on some of his clothing, as well as scratches under his eye, and on his neck and cheek. Other objects from Haupt's apartment, including the Brookshires' cigarette carton, were found under the couch where Hines had been sleeping.

Hines was convicted of capital murder on March 19, 1992, and sentenced to death. His direct appeal was denied by the Texas Court of Criminal Appeals in May 1995 in an unpublished opinion. Hines v. State, No. 71,442 (Tex. Crim App. May 10, 1995) (unpublished). His state habeas application was also denied by the Texas Court of Criminal Appeals in another unpublished opinion. Ex Parte Hines, No. 40,347-01 (Tex.Crim.App.1999) (unpublished). The federal district court for the Northern District of Texas then denied Hines' federal habeas relief, as well as his request for a COA to our court.

II. STANDARD OF REVIEW

A habeas petitioner cannot appeal the denial of habeas relief from the district court unless he obtains a COA. 28 U.S.C. § 2253(c)(1). Since Hines filed his habeas application after April 24, 1996, the rules for COA review are governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). “Under AEDPA, a COA may not issue unless ‘the applicant has made a substantial showing of the denial of a constitutional right.’ ” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (citing 28 U.S.C. § 2253(c)(2)). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong,” or, at least, that the “issues presented were adequate to deserve encouragement to proceed further.” Id. at 484; Moore v. Johnson, 225 F.3d 495, 500 (5th Cir.2000). Although the nature of the penalty in a capital case is an appropriate consideration in evaluating a COA application, “the severity of the penalty does not, in and of itself, require the issuance of a COA. However, in capital cases, doubts as to whether a COA should issue must be resolved in favor of the petitioner.” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000) (citations omitted); Lamb v. Johnson, 179 F.3d 352, 356 (5th Cir.1999).

To obtain habeas relief, a petitioner must either demonstrate that the state court's decision “was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision is “contrary to” clearly established federal law if it “arrives at a conclusion opposite to that reached by th[e] [Supreme] Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” Id. A state court's decision is an “unreasonable application” of federal law “if the state court identifies the correct governing legal principle from th[e] [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. A state court's determination of factual issues are presumed correct and the applicant bears the burden of rebutting the presumption with clear and convincing evidence.

III. TRIAL CONTINUANCE

Hines first seeks a COA for his claim that the trial court violated his constitutional right to due process and effective assistance of counsel by denying him a trial continuance following jury selection to allow his DNA expert, Dr. Arthur J. Eisenberg, to conduct independent testing of blood samples found on Hines' pants and underwear. The government subjected those samples to a serology test that found the blood contained A antigens, and therefore could not have come from the victim. The subsequent government DNA test matched the blood sample with the victim's, however, and Hines sought a ten-week continuance to conduct an independent DNA test to resolve this discrepancy. The trial court denied this continuance, and Hines now argues this denial was unconstitutional.

When a denial of a continuance is the basis of a claim for habeas relief, for relief to be granted not only must the trial judge have abused his discretion, but the denial must have been “so arbitrary and fundamentally unfair that it violates constitutional principles of due process.” Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir.1981). Here, petitioner claims that the denial violated his due process right to present an effective defense as guaranteed in Ake v. Oklahoma, 470 U.S. 68, 76-77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake the Supreme Court held a criminal defendant's due process rights include the right to expert assistance where such help is necessary to give indigent defendants “an adequate opportunity to present their claims fairly within the adversary system.” Id. at 77, quoting Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). Hines argues that by denying the continuance, the trial court robbed him of his ability to effectively use Dr. Eisenberg, thereby depriving him of the opportunity to mount an adequate defense.

The Texas state courts and the district court offer compelling reasons why this claim fails. First, the state habeas court concluded that Hines did in fact receive expert assistance as required by Ake. Dr. Eisenberg testified at trial about the shortcomings in the prosecution's DNA evidence, including the inconsistency with the serology test results, as well as the fact that the DNA test could not exclude that the blood on Hines' clothes was that of his roommate Jimmy Knight. Dr. Eisenberg also assisted the defense in preparation of its cross-examination questions, including questions to the State's serologist Michele Skidmore that attempted to discredit her theory that the A antigens came from Hines' sweat. Thus, even without additional testing, the state habeas court concluded the defense was able to use Dr. Eisenberg to raise reasonable doubt in juror's minds about the state's blood evidence.

Hines fails on appeal to introduce evidence that suggests this conclusion of the state habeas court was an unreasonable application of or contrary to established Supreme Court precedent. Hines argues that had Dr. Eisenberg conducted additional testing, it would have provided evidence consistent with the theory that Hines is innocent, and inconsistent with the government's test results. While such speculative benefits are possible, Hines forgets the admonishment of the Court in Ake that the state need not buy the indigent defendant all the assistance a wealthy man might get. Ake, 470 U.S. at 77. Rather, the test is whether the defendant was given an adequate opportunity to present his claims at trial. Here, Dr. Eisenberg's testimony regarding the shortcomings in the state's DNA evidence, as well as his assistance in drafting cross-examination questions of the state's DNA and serology witnesses, gave Hines such an opportunity. Thus, Hines fails to develop the factual or legal basis of a valid Ake claim.

Assuming arguendo that Eisenberg's assistance to defense counsel was somehow inadequate, Hines has not demonstrated that he had the constitutional right to further DNA testing. As we explained in Yohey v. Collins, 985 F.2d 222, 227 (5th Cir.1993) non-psychiatric experts should be provided only if the evidence is “both critical to the conviction and subject to varying expert opinion.” Id. (citations omitted). In denying Hines' claim on direct appeal, the Texas Court of Criminal Appeals concluded that petitioner failed to establish that additional DNA testing met the second prong of this test. It explained that Hines did not introduce evidence suggesting that further testing would produce a contrary result. In reaching this conclusion the state court noted that Dr. Eisenberg had testified that he believed that the government's tests were conducted using proper procedures, suggesting further DNA testing would not produce different results. In finding this conclusion was not an unreasonable application of or contrary to established Supreme Court precedent, the district court added its own doubt that prong 1 of the test had been met, concluding that evidence as to the source of the blood on Hines' clothes was not “critical” to his conviction. The district court came to this conclusion after considering the volume of other evidence against Hines, including his bloody palm print on Haupt's wall.

Hines argues that reasonable jurists would debate both of these conclusions. As to the former, Hines claims that the inconsistencies between the government DNA results and the serology report were sufficient to suggest that the results of a second DNA test might be different than the first. As to whether the evidence was “critical” to conviction, Hines argues that contrary DNA evidence would have given him three benefits critical to his defense. First, the testing might have established the government's DNA evidence was too unreliable to be admitted.FN2 Second, the test could have impeached Dr. Robert Giles, the government DNA expert. Finally, the results could have created rebuttal evidence consistent with the theory that Hines is innocent.

FN2. Under Texas Rule of Criminal Evidence 702, expert testimony is only admissible if it is reliable and on balance is of assistance to the trier of fact. Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992). Such evidence is reliable if (a) the underlying scientific theory is valid; (b) the technique applying the theory is valid; and (c) the technique was properly applied in the case in question. Id. at 573.

Hines' arguments do not lead us to believe that reasonable jurists would debate the district court's conclusions. To be entitled to non-psychiatric expert assistance a defendant must show something more than a mere possibility that the desired assistance will be helpful. Yohey, 985 F.2d at 227. In this case Hines has not shown that there is more than the mere possibility that additional DNA testing would produce different results. Given the testimony of Skidmore that the contrary serology results were caused by Hines' sweat, those results are insufficient to suggest that further DNA tests would produce a different result. Further, as the state court on direct appeal noted, defendant's expert admitted that the state procedures for the DNA test were adequate. This suggests that a second test likely would have produced the same results.

Hines has also not shown that the evidence from the second DNA test would have been critical evidence at trial. As the district court correctly noted, the State has other scientific evidence tying Hines to Haupt's apartment, including his bloody palm print on her wall. Additionally, the State had circumstantial evidence linking Hines to Haupt, as he had her belongings in his possession. Thus, the DNA link of Haupt to Hines' clothes does not seem critical to the conviction. Moreover, even if the additional test produced contrary results, it would not have resulted in exclusion of the government's DNA test, as by defendant's own admission the government DNA test used proper techniques. FN3 At most it would have produced additional impeachment evidence. FN4 Given that Dr. Eisenberg already presented such evidence, we cannot conclude that additional impeachment evidence meets the “critical” threshold.

FN3. As noted above, the test for reliability for admission of expert testimony is whether (a) the underlying scientific theory is valid; (b) the technique applying the theory is valid; and (c) the technique was properly applied in the case in question. Kelly, 824 S.W.2d at 573. As DNA evidence meets the first two prongs of this test in Texas, id. at 574, and defendant's expert admits it was properly applied here, the evidence would have been admissible regardless of contrary test results produced by Eisenberg. FN4. Hines argues that a DNA test showing the blood on his clothes was not Haupt's would be independent evidence of his innocence. He argues that the blood was instead that of his roommate Jimmy Knight. But Hines has failed to explain how the fact that the blood belonged to Jimmy Knight, or anyone else other than Haupt for that matter, would exonerate him, as such evidence is in no way probative of innocence. At most, it would discredit one piece of the government's case, which when considered in the context of the volume of other evidence against Hines, is not critical.

Accordingly, Hines' request for a COA on this claim is denied.

IV. STATE HABEAS ERRORS

Hines next seeks a COA for his claim that the state habeas court erred by not hiring him a DNA expert to assist in preparation of his claim, thereby depriving him of due process and effective assistance of counsel. The district court denied Hines relief on this claim on alternative grounds. First, it addressed the merits of the claim, and concluded it was not unreasonable for the state court to deny Hines access to an expert to develop his claims. In the alternative, the district court held that the claim of error in the state habeas proceeding was not cognizable on federal habeas, as the claim was an attack on a proceeding collateral to the detention rather than the detention itself.

Errors and deficiencies in state habeas proceedings cannot form the basis of relief in a federal habeas application. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.1999). Hines argues reasonable jurists would debate the district court's application of this straightforward rule because the Texas state constitution guarantees petitioners the right to “competent counsel” in state habeas proceedings. This state created right to habeas counsel creates a federal constitutional right to effective counsel, Hines reasons.

Hines' argument is unavailing, as we rejected this exact argument in In re Goff, 250 F.3d 273 (5th Cir.2001). There we explained that under Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), states that choose to provide petitioners counsel in state post-conviction proceedings are not obligated to ensure that counsel meets constitutional minimums for defense attorneys at trial or on direct appeal. In re Goff, 250 F.3d at 275. The reason, we explained, was that, “the Constitution does not put the State to the difficult choice between affording no counsel whatsoever,” or following strict constitutional guidelines for the counsel it provides. Id., quoting Finley, 481 U.S. at 559. Thus, as Texas was under no obligation to provide Hines with counsel for his state habeas proceeding, the ineffective assistance of that counsel, or counsel's failure to meet minimum due process standards, cannot form the basis of federal habeas relief. Hines' request for a COA on this claim is denied.

V. DISTRICT COURT FUNDING OF DNA TESTS

In his final point of error Hines argues the district court wrongly denied him funds to conduct a new DNA test on the blood evidence to aid his federal habeas application as allowed under 21 U.S.C. § 848(q)(9). That section states: Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant's attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses ... 21 U.S.C. § 848(q)(9) (emphasis added). In denying Hines funds under this section, the district court concluded that Hines had not shown that the requested assistance would aid him in the development of a viable habeas claim. It rejected his argument that testing would aid in developing the trial continuance claim above, concluding that claim lacked merit.

We review the district court's determination to deny expert funds under 21 U.S.C. § 848(q)(9) for an abuse of discretion. See Clark, 202 F.3d at 765-66 (noting that district court's determination whether to take additional evidence is reviewed for abuse of discretion). Hines argues that the district court abused its discretion in denying the funds because a DNA test was reasonably necessary for him to prove that the DNA test results were “subject to varying expert opinion,” as required by Yohey, 985 F.2d at 227.

Assuming arguendo that Hines is correct that the tests were reasonably necessary to establish that a second DNA test at trial would have produced different results, we still cannot conclude that the district court abused its discretion. We explained in Fuller, 114 F.3d at 502 (5th Cir.1997), that for a request for funds to be “reasonably necessary” for a claim, a petitioner must demonstrate how those results can show that any aspect of his trial was constitutionally flawed. Hines argues that the requested test could show that he was constitutionally entitled to a trial continuance under Yohey. But to make a valid Yohey claim, not only does Hines have to show that additional DNA testing might have produced different results, but also that the results would have been critical evidence at trial. As we noted above, Hines cannot do so. Accordingly, we affirm the district court's denial of Hines' funding request.

VI. CONCLUSION