Texas Department of Criminal Justice

Texas Attorney General Media Advisory

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Melvin White, who is scheduled to be executed after 6 p.m. Thursday, November 3, 2005. White was sentenced to death for the 1997 capital murder of 9-year-old Jennifer Lee Gravell in Crockett County. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

On August 5, 1997, Melvin White abducted 9-year-old neighbor Jennifer Lee Gravell from a neighborhood barbeque, bound her hands with electrical tape, drove her to a deserted area north of Ozona, took her behind a water tank, sexually assaulted her, then killed her by striking her six to seven times on the head with a tire tool. The blows crushed Jennifer’s skull.

Witnesses observed White driving a truck with a young girl in the passenger seat shortly before midnight the evening of the barbecue, and returning home after 1 a.m. the following day. White was arrested, and he confessed to the crime. White told police where they could find Jennifer’s body.

Shoe prints found at the crime scene matched the shoes White had been wearing at the barbecue. The shoes were found in White’s home. Blood on the shoes matched Jennifer’s DNA. Blood on the right rear quarter panel of White’s pickup truck also matched Jennifer’s DNA. Tire tracks at the crime scene were similar to those of White’s pickup truck. Police recovered Jennifer’s underpants and sandals in a trash container inside White’s house, along with a ball of electrical tape with numerous blonde hairs that a trace evidence expert said could have belonged to Jennifer.

PROCEDURAL HISTORY

August 15, 1997 – White was indicted for capital murder.
June 10, 1999 – White was convicted of capital murder.
June 14, 1999 – White was sentenced to death.
Direct Appeal
January 31, 2001 – The Texas Court of Criminal Appeals affirmed White’s conviction and sentence.
Habeas Proceedings
September 4, 2000 – White filed an application for writ of habeas corpus in the state trial court.
August 23, 2001 – The state trial court recommended that habeas relief be denied.
October 31, 2001 – The Texas Court of Criminal Appeals denied habeas corpus relief.
October 28, 2002 – White filed a petition for a writ of habeas corpus in a U.S. district court.
April 22, 2004 – The federal district court denied habeas corpus relief.
July 19, 2004 – White filed a motion for a certificate of appealability (COA) in a U.S. district court.
August 2, 2004 – The federal district court denied White’s request for a COA.
September 20, 2004 – White filed a motion for a COA in the 5th U.S. Circuit Court of Appeals.
March 24, 2005 – The 5th Circuit Court denied White’s request for a COA.
April 4, 2005 -- White filed a petition for rehearing by the full 5th Circuit Court.
April 15, 2005 – The 5th Circuit Court denied White’s petition for rehearing
July 7, 2005 – White filed a petition for writ of certiorari in the U.S. Supreme Court.
Oct. 11, 2005 – The U.S. Supreme denied White’s petition.
Oct. 21, 2005 – White filed a 1983 claim in U.S. federal court.
Oct. 25, 2005 – The federal district court dismissed White’s complaint with prejudice.
November 3, 2005 – White’s scheduled execution date

CRIMINAL HISTORY

At trial, the jury learned that prior to the capital murder, White had assaulted his underaged daughter, forced her to perform oral sex, and raped her. White also offered his daughter $50 per week if she would provide him with sexual favors on demand. White had also fondled the genitals of a four-year-old female cousin and grabbed the breast of an unrelated teenaged girl visiting his home. In addition, White had beaten his ex-wife on at least two occasions and taken a swing at a male friend of his teenaged son.

ProDeathPenalty.com

On August 4, 1997, the subject kidnapped 9-year-old Jennifer Lee Gravell in Ozona, Texas, during the nighttime hours. He then took her to a roadside park out of the city limits and attempted to have sexual intercourse with her. The victim resisted, but he taped her hands behind her back with black electrical tape and continued to sexually assault her. During this time, a vehicle pulled up behind him and he left the location. He then he took the victim to another location, hit her several times on the head with a tire tool, and left the scene. Authorities were given the location of the body by the subject. The victim was found with her hands tied behind her back, deceased.

On August 4, 1997, then forty-seven-year-old White kidnapped, sexually assaulted and murdered a nine-year-old girl who lived in his neighborhood in Ozona, Texas. On the night of a neighborhood barbeque, White went home between 10:30 and 11:00 p.m. after consuming several alcoholic drinks. Around this time, Jennifer came over to his house. White took her in his truck to a roadside rest area where he bound the girl’s hands behind her back with electrical tape, stuffed a sock in her mouth and sexually assaulted her with an object – possibly a screwdriver. He also admitted that he molested her with his finger. White then killed Jennifer by repeatedly striking her head with a tire tool and dumped her body behind a water tank in a field outside of town.

In a trash can in White’s house, investigators discovered the victim’s underpants, sandals, and a ball of electrical tape with her hair in it. At the punishment phase of trial, the prosecution presented evidence that White had forced his daughter to perform oral sex and penetrated her with his finger when she was twelve years old. White’s daughter testified that two years later her father had offered her fifty dollars per week if she would provide him with sexual favors upon demand. Further evidence demonstrated that when White was between ten and twelve years old he molested a four-year-old relative. Additionally, a witness testified that White allowed teenagers to have parties at his house where alcohol was served, and during a party he touched a teenage girl’s breast. Another witness testified that White had watched her engage in sex with his son and later described the events in detail.

Dr. Windell Dickerson, the chief psychologist employed by the Texas prison system, opined for the prosecution that, if one believed that White had raped his daughter, then White posed a very serious risk for further violent conduct. On June 10, 1999, the jury found White guilty of capital murder. Following a separate punishment hearing, White was sentenced to death.

Texas Execution Information Center by David Carson.

Melvin Wayne White, 55, was executed by lethal injection on 3 November 2005 in Huntsville, Texas for the kidnapping, sexual assault, and murder of a 9-year-old girl.

On 4 August 1997, White, then 47, was attending a neighborhood barbecue in Ozona. He consumed several alcoholic drinks, then went home between 10:30 and 11:00 p.m. Around this time, Jennifer Gravell, who lived two houses away and was also at the party, came over to his house. White then abducted Gravell and drove her in his truck to a roadside rest area north of town. There, he took her behind a water tower, bound her hands behind her back with electrical tape, stuffed a sock in her mouth, and sexually assaulted her with an object - believed by investigators to be a screwdriver - and with his finger. He then hit her on the head six or seven times with a tire tool, crushing her skull.

Witnesses reported seeing White driving a truck with a young blonde girl in the passenger's seat shortly before midnight, and returning home alone after 1:00 a.m. White was arrested, and he confessed. He told police where they could find Gravell's body.

Shoe prints found at the crime scene matched shoes found in White's home. Blood on the shoes matched the victim's DNA. Blood on White's pickup also matched her DNA. Underwear and sandals belonging to the victim were found in a trash container inside White's house, along with a ball of electrical tape that had numerous blonde hairs stuck to it.

A jury convicted White of capital murder in June 1999 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in January 2001. All of his subsequent appeals in state and federal court were denied.

White had no prior felony convictions. However, at his punishment hearing, the jury was told that White had sexually assaulted his daughter when she was twelve, that he forced her to perform sex acts on him, and that he offered to pay her $50 per week to perform sexual favors for him on demand. The jury was also told that he allowed teenagers to have parties at his house where alcohol was served, and during one party, he grabbed the breast of a teenage girl. The jury was also told that White had beaten his ex-wife on at least two occasions. White also had several misdemeanor arrests and convictions for driving while intoxicated, public intoxication, and making a false report.

"I don't remember much about it because I was drinking," White told a reporter in an interview from death row the week before his execution. White said that he had been drinking since the age of 13 or 14. "I always bought vodka in half gallons," he said. "I'd drink one of those every three days, and that doesn't count when I'd go to the bar ... At the rate I was drinking, if I hadn't come to prison, I'd probably killed myself, drink myself to death." "I messed up, that's all there is to it," White said.

White said that he did not want to die, but that the state would be doing him a favor by executing him. "I look at it as relief, just to get out of here," he said. "If they put me to death, it's going to be the easy way out. The hard way would be to have me live here with that."

In May 2003, Charlie Gravell, Jennifer's father, shot himself to death. Jennifer's grandmother, Dottie Elrod, blamed the suicide on Jennifer's murder. "He just couldn't handle it," Elrod told a reporter.

In his last statement, White apologized to Beth Gravell, the victim's mother, who did not attend the execution. "Tell Beth and them I am sorry, truly sorry for the pain I caused your family," White told his victim's mother in his last statement. "I truly mean that, too. She was a friend of mine, and I betrayed her trust." White then expressed love to his friends and family. After reciting the 23rd Psalm and the Lord's Prayer from the Bible, White said, "All right warden, let's give them what they want." The lethal injection was started. White said, "I can taste it." He was pronounced dead at 6:21 p.m.

National Coalition to Abolish the Death Penalty

TEXAS - Melvin Wayne White - November 4, 2005

Melvin Wayne White, a white man, is scheduled to be executed in Texas on Nov. 3, 2005 for the Aug. 5, 1997 death of a 9-year-old white female in Pecos County.

The death penalty is a cruel, unusual, and inhuman punishment. Additionally, the death penalty is arbitrary and prone to occasional error. Statistics on the death penalty’s effect on deterrence are inconclusive at best. The execution of Melvin Wayne White will not bring his victim back to life. Also, executing White only serves to further desensitize our society to violence and thereby may increase instances of such behavior.

Please write to Gov. Rick Perry requesting that he stop the execution of Melvin Wayne White.

The Huntsville Item

"Man executed in rape and murder of 9-year-old," by Brian Lacy. (November 4, 2005)

Melvin White, convicted for the 1997 abduction, sexual assault and murder of a 9-year-old girl, was executed Thursday night inside the Huntsville “Walls” Unit.

In his final statement, White apologized to Beth Gravell, the mother of his young victim, Jennifer. “Tell Beth and them I am sorry, truly sorry for the pain that I caused your family,” he said. “I truly mean that, too. She was a friend of mine and I betrayed her trust.” White then recited the 23rd Psalm and the Lords Prayer before saying, “All right, warden. Let's give them what they want.” As the drugs began to take effect, White said, “I can taste it.” Moments later he sputtered and gasped several times before falling silent. He was pronounced dead nine minutes later at 6:21 p.m.

White confessed to the slaying of Jennifer Gravell, blaming a lifelong drinking problem for his attack on the young girl whose family lived two houses away from him in Ozona, a town of about 3,500 people about 200 miles west of San Antonio. Prosecutors insisted White was a pedophile who used the alcohol explanation as a convenient excuse for his actions.

Beth Gravell did not attend Thursday's execution, but Shannon Flanigan, who was an assistant prosecutor in Crockett County at the time of White's trial, spoke with reporters after witnessing the execution. “Actions have consequences, and no consequence really pays all the debt for such a monstrous act,” added Flanigan, now an assistant district attorney in Brazos County. “The accounting taken by the state of Texas against this animal has been kind, kind because today we protect all the other Jennifer Gravells in our towns.”

Melvin White attended a neighborhood barbecue the evening of Aug. 7, 1997, and went home after downing several drinks. Jennifer also attended with her family, then was noticed missing later in the evening. Evidence and testimony showed White took her in his pickup to a roadside rest area outside Ozona where she was bound with black electrical tape, had a sock stuffed into her mouth and was sexually assaulted with a screwdriver. Then she was hit repeatedly with a tire iron before her body was dumped behind a water tank.

Authorities found in a trash can in White's house the girl's underpants, sandals and a ball of tape with her hair on it. White confessed to a Texas Ranger and told where the body could be found. A witness had told authorities, after the girl was reported missing, that he saw White in his truck with what he believed was a blond person. The victim had blond hair.

“I don't remember much about it because I was drinking,” White said last week, saying he'd been a drinker since he was 13 or 14. At his trial, prosecutors showed White had assaulted an underage daughter, forced her to perform oral sex, raped her and offered to pay her $50 a week to perform sexual favors. He also had been accused of fondling a female cousin and teenage girl who had been visiting his home.

In May 2003, Charlie Gravell, Jennifer's father, shot himself to death, a suicide Dottie Elrod, the slain girl's grandmother, blamed on the loss of his daughter. “He just couldn't handle it,” Elrod told the San Angelo Standard-Times this week.

White's lethal injection was the 16th of the year in Texas, the nation's most active death penalty state. Three more convicted killers are set to die over the next two weeks.

Reuters News

"Texas man executed for 1997 murder." (Thu Nov 3, 2005 9:36 PM ET)

HUNTSVILLE, Texas (Reuters) - A Texas man who sexually assaulted and killed a 9-year-old girl in 1997, was executed by lethal injection on Thursday. Melvin Wayne White, 55, was the 16th person put to death this year in Texas, which leads the nation in capital punishment.

White was condemned for kidnapping Beth Gravell, his young neighbor in the west Texas town of Ozona, and taking her to a remote area where he bound her hands with electrical tape, sexually assaulted her, then beat her to death with a tire iron. He later confessed to the crime and told police where to find the body.

In his final statement while strapped to a gurney in the Texas death chamber, White apologized to the girl's family and recited the 23rd Psalm and "The Lord's Prayer." "All right, warden," he said upon finishing. "Let's give them what they want."

For his last meal, White requested four Spanish omelets with gravy and hash brown potatoes on the side, six pieces of buttered toast, a gallon of milk, sliced peppers, onion rings, french fries, a cheeseburger, a pork chop and gravy, fried chicken, six slices of bread, a pitcher of ice, two Cokes, peach cobbler and vanilla ice cream.

He was the 352nd person put to death in Texas since the state resumed executions in 1982. Four more executions are scheduled this year in Texas.

Ft. Worth Star-Telegram

"Confessed killer of 9-year-old girl executed," by Michael Graczyk. (Associated Press Posted on Thu, Nov. 03, 2005)

HUNTSVILLE - Convicted child killer Melvin Wayne White, apologetic and prayerful, was executed Thursday evening for the 1997 abduction, sexual assault and beating death of a 9-year-old girl who lived in his West Texas neighborhood.

In final comments on the death chamber gurney, White told witnesses to tell "Beth and them I am sorry, truly sorry for the pain that I caused your family." He was referring to the mother of his victim. "I truly mean that, too. She was a friend of mine and I betrayed her trust." White told the witnesses that he loved them and asked that they tell his mother that he loved her. Then, he began reciting the 23rd Psalm, which begins "The Lord is my shepherd" and recited the Lord's Prayer. "All right, warden," he said at the conclusion. "Let's give them what they want." As the drugs began taking effect, he remarked, "I can taste it." He then sputtered and gasped. Nine minutes later at 6:21 p.m., he was pronounced dead.

White confessed to the slaying of Jennifer Gravell, blaming a lifelong drinking problem for his attack on the young girl whose family lived two houses away from him in Ozona, about 200 miles west of San Antonio.\ Prosecutors insisted White was a pedophile who used the alcohol explanation as a convenient excuse for his actions. His lethal injection was the 16th of the year in Texas, the nation's most active death penalty state. Three more convicted killers are set to die over the next two weeks.

In a death row interview last week, White, 55, acknowledged the slaying, expressed regrets, said he didn't want to die but figured the state was doing him a favor by executing him. "I look at it as relief, just to get out of here," he said. "I've got to live with this for the rest of my life. It's not an easy deal to do."

The U.S. Supreme Court, which last month refused to review White's case, rejected an 11th-hour appeal about an hour before his scheduled execution time. White's lawyers had challenged procedures barring them from filing a suit related to the constitutionality of the lethal combination of drugs used in the injection by prison officials.

Earlier this week, the Texas Board of Pardons and Paroles declined a pair of requests to delay White's punishment for 90 days or commute his sentence to life. "This was a guy that was supposed to be their next-door neighbor," Dottie Elrod, the slain girl's grandmother, told the San Angelo Standard-Times this week. "I've fought for eight years to get this done."

Ori White, the district attorney who prosecuted the case, said the murder was a heinous crime that left Ozona, population about 3,500 and the only town in Crockett County, "a town that will never be the same."

Melvin White attended a neighborhood barbecue the evening of Aug. 7, 1997, and went home after downing several drinks. Jennifer also attended with her family, then was noticed missing later in the evening. Evidence and testimony showed that White took her in his pickup to a roadside rest area outside Ozona where she was bound with black electrical tape, had a sock stuffed into her mouth and was sexually assaulted with a screwdriver. Then she was hit repeatedly with a tire iron before her body was dumped behind a water tank. Authorities found in a trash can in White's house the girl's underpants, sandals and a ball of tape with her hair on it. White confessed to a Texas Ranger and told where the body could be found.

A witness had told authorities, after the girl was reported missing, that he saw White in his truck with what he believed was a blond person. The victim had blond hair. "I don't remember much about it because I was drinking," White said last week, saying he'd been a drinker since he was 13 or 14.

At his trial, prosecutors showed that White had assaulted an underage daughter, forced her to perform oral sex, raped her and offered to pay her $50 a week to perform sexual favors. He also had been accused of fondling a female cousin and teen-age girl who had been visiting his home.

In May 2003, Charlie Gravell, Jennifer's father, shot himself to death, a suicide Elrod blamed on the loss of his daughter. "He just couldn't handle it," Elrod said.

Next on the execution schedule is inmate Charles Thacker, facing injection Nov. 9 for strangling a Houston woman while attempting to rape her. Two more Texas inmates are set to die the following week, another in December and five have execution dates for early next year.

Houston Chronicle

"Apologetic child killer recites 23rd Psalm at his execution." (Associated Press Nov. 4, 2005, 12:26AM)

HUNTSVILLE - Convicted child killer Melvin Wayne White, apologetic and prayerful, was executed Thursday evening for the 1997 abduction, sexual assault and beating death of a 9-year-old girl who lived in his West Texas neighborhood.

In final comments on the death chamber gurney, White told witnesses to tell "Beth and them I am sorry, truly sorry for the pain that I caused your family." He was referring to the mother of his victim. "I truly mean that, too. She was a friend of mine and I betrayed her trust." White told the witnesses that he loved them and asked that they tell his mother that he loved her. Then, he began reciting the 23rd Psalm, which begins "The Lord is my shepherd" and said the Lord's Prayer. "All right, warden," he said at the conclusion. "Let's give them what they want." As the drugs began taking effect, he remarked, "I can taste it." He then sputtered and gasped. Nine minutes later at 6:21 p.m., he was pronounced dead.

White, 55, confessed to the slaying of Jennifer Gravell, blaming a lifelong drinking problem for his attack on the young girl whose family lived two houses away from him in Ozona, about 200 miles west of San Antonio. Prosecutors insisted White was a pedophile who used the alcohol explanation as a excuse.

His lethal injection was the 16th of the year in Texas. Three more convicted killers are set to die over the next two weeks.

St. Angelo Times

"Small town shattered; Death of 9-year-old still haunts family, Ozona," by Paul A. Anthony. (November 3, 2005)

OZONA - Jennifer Gravell remains a blond butterfly with green eyes and a mischievous grin in the photograph that hangs in her grandmother's apartment. With arms around her brother, Bubba, she is forever 9 years old, it is still 1997, and she is wearing a new dress - one that would never be worn again. In 1999, the same picture adorned Jennifer's gravestone while Melvin Wayne White was sentenced to die for her rape and murder.

Today, in what would have been the girl's senior year of high school, White is scheduled to be executed, eight years and three months after Jennifer disappeared from a neighborhood barbecue. Her death rocked this small town, and the way she died - abducted, raped and beaten to death by a neighbor - ripped apart her family and her neighborhood, a close-knit group of people who live on Avenue L.

The anger remains, as does the disbelief. On the eve of Melvin White's death, Ozonans still ask how it could have happened - how could one of their own have done something so horrible? ''This was a guy that was supposed to be their next-door neighbor,'' said Dottie Elrod, Jennifer's grandmother. ''I've fought for eight years to get this done.'' The crime started in 1997 with a party. It will end this week with a funeral.

A close-knit street

In the season of ghouls and monsters, Avenue L last week was dressed for the occasion. Jack-o'-lanterns sat on front porches, Halloween decorations adorned houses. At 101 Avenue L, where a ghoul of a different kind continues to haunt the Gravell family, plastic ghosts hung by string from trees. Swing sets, tire swings and basketball hoops all attest to the fact that Avenue L - a small, two-block street in northwest Ozona - is an avenue for children.

It was no different in 1997, when children often rode their bicycles after dark and dropped in on neighbors to play with friends. ''We all watched out for each other's kids,'' said Beth Gravell, Jennifer's mother, during White's trial. ''I thought it was, 'My house was your house.''' Beth Gravell declined to comment for this article, saying only, ''It's just a hard enough time right now.''

White lived two houses down from the Gravells at 105 Avenue L. Children often stopped at his house, where he would help them fix their bicycle tires, Elrod said.

On Aug. 4, 1997, one family on Avenue L threw a barbecue party. Children scampered from house to house, jumping on a neighbor's trampoline after White volunteered to stand watch. During the party, a friend of Jennifer's, Melissa Ivey, saw Jennifer go into White's house. Sensing that something was wrong, Melissa knocked on the door and asked if Jennifer could play at Melissa's house next door. After the girls played for a while, Melissa's mother told Jennifer she had to go home because school was the next morning. It was the last time anyone saw Jennifer Gravell alive. Her walk home took her past Melvin White's house.

Soon after, by about 11 p.m., according to testimony in court, Beth Gravell noticed her daughter was missing. White also was not at home, and, after a search of the neighborhood, the mother began searching for White's truck around town. When she returned, White was back. He came to the door with wet hair and said he hadn't seen the girl ''since earlier.'' Gravell called the Crockett County Sheriff's Office.

By early morning, suspicion was focusing on White. He had been seen returning home through an alley with his lights off, he gave inconsistent statements about where he had been, and a police dog trained to search for missing people ran from White's back door to his pickup and jumped inside. ''He was pretty much the one and only suspect,'' said Texas Rangers Lt. Jerry Byrne, who was stationed in Ozona, about 90 miles southwest of San Angelo, at the time.

During a marathon interview with the suspect that began before dawn and ended after lunch, Byrne elicited a confession in which White said he took the girl, bound and gagged her with duct tape, raped her, then beat her to death with a tire tool. White described the location of Jennifer's body - behind a storage tank on State Highway 137, north of Ozona. The revelation ended a search that included hundreds of Ozonans, as well as law enforcement from several agencies and neighboring counties, Byrne said. Parents Beth and Charlie Gravell were at home when the news came back. ''I had to sit on her,'' Brandi Killum, Charlie Gravell's sister, said of Beth Gravell. ''She jumped up and was ready to kill.''

Gruesome trial

For District Attorney Ori T. White, the decision to seek Melvin White's death was easy. Immersing himself in the case was not. ''There are some things,'' he said, ''that prosecutors try to forget.'' Ori White, then the chief prosecutor for the 112th Judicial District, which includes Crockett and Pecos counties, constructed a three-day prosecution with the videotape of Byrne's interview as the centerpiece.

The proceedings took place in Fort Stockton after a judge ruled that Melvin White, who is not related to his prosecutor, could not have received a fair trial in Ozona. During the guilt phase of the trial, Ori White presented gruesome photographs of Jennifer Gravell's head and genitals with testimony from medical experts about what the wounds showed. He elicited testimony from neighbors about the circumstances of the girl's disappearance. He entered into evidence a pair of shoes, Jennifer's underwear and a wad of duct tape with blonde hairs stuck to it - all found in a trash can in Melvin White's home. White's San Angelo-based attorneys called no witnesses. The jury took only 40 minutes to convict him.

''He did it,'' said Kirk Hawkins, who, with Paul S. Parker, was appointed to defend White. ''It was clear that he did it.'' Instead of focusing on defending an indefensible case, Hawkins and Parker tried to show that mitigating factors - namely, a decades-old brain injury and a drinking problem - led to a catastrophic lowering of White's impulse control. Parker emphasized that White, then 49, faced life in prison, and that his age made any chance of release improbable. ''There is not a choice or a decision or a verdict that you can reach that's going to set Melvin White free,'' Parker told jurors during the punishment phase's closing arguments. ''That's not one of the potentials.''

The prosecution's evidence, however, overwhelmed those arguments, presiding juror Kris Edwards, a Fort Stockton resident, said in an interview last week. Along with presenting bloody photographs that reinforced the horror of the crime, Ori White called to the stand Christina Constancia, Melvin White's daughter, whom he raped in 1992 and propositioned for sex two years later, when she was 14. Another White family member testified that she caught the defendant as a boy fondling his female cousin. Psychiatrists testified that White posed a monumental danger to society - even an analyst called by the defense said the man deserved to be ''locked in a cage for the rest of his life.''

In his closing arguments for the guilt and punishment phases, Ori White constructed the theme of Jennifer Gravell as a butterfly, saying this week that he drew the image from the thought of her playing on a trampoline the night she disappeared. ''She looks like a little beautiful butterfly, a little butterfly,'' White told jurors, showing them a picture of her. ''Little butterfly with little sandals. ... The little butterfly flew into a spider's web.'' There was little discussion in the jury room, Edwards said. Melvin Wayne White was sentenced to death.

Another tragedy

The way Dottie Elrod sees it, White will be paying for two deaths tonight. Jennifer Gravell was in her grave almost six years when her father, haunted by guilt and alcohol, shot himself to death in May 2003. ''He just couldn't handle it,'' Elrod said, wiping tears from her eyes. ''He kept saying, 'Momma, I caused her death. I was supposed to protect her and keep her safe.''' Beth Gravell still lives in the house at 101 Avenue L, with her two children - Christine, 22, and Bubba, 14.

Elrod said she wanted to attend the execution, but that her children discouraged her from doing so. She has made arrangements to hear from a state corrections official as soon as White is put to death. The only person representing the family who will attend the execution is current Crockett County District Attorney Laurie English, a cousin by marriage, Elrod said. Jennifer's death, the subsequent trial, and Charlie Gravell's suicide have hurt the family, Elrod said, but the wound is not fatal. ''He didn't destroy my family,'' she said. ''He may have bent my family a little bit, but he didn't break my family.'' Another family is hurting, too, Elrod acknowledged - Melvin White's.

Marie White, his mother, who lives in Big Lake, declined to comment, as did his sister, Estelle Sinclair of Abilene. ''My family is going through hell,'' Elrod said, ''and his family went through hell. I don't care what your kids do, they're still your kids. (Marie White) is fixing to lose a child.''

In Ozona, anger remains prominent, said Charles Preddy, a jailhouse minister who gave Melvin White Bible lessons in Crockett County Jail and will conduct his funeral in Big Lake. Rumors about White's rape of his daughter - for which charges were dropped in exchange for counseling - circulated before the murder of Jennifer Gravell, he said, but no one ever thought much about it. Now, ''People say, 'I would go - I would enjoy watching him die,''' Preddy said. ''But I don't.''

Privately, White expressed remorse for his actions, Hawkins said, although the defendant showed no emotion during his confession or the trial - a key factor when the jury sentenced him to death, Edwards said. In a jailhouse interview with The Associated Press, Melvin White, now 55, blamed his compulsive drinking for the murder. ''I messed up,'' he said. ''That's all there is to it.''

His victim, meanwhile, lives on in a photograph taken the day of her death. Jennifer Gravell is forever smiling, forever mischievous, forever 9 years old on Dottie Elrod's wall. ''He got eight years longer than Jennifer got,'' Elrod said. ''It has to be done now.'' C.A.5 (Tex.),2005.

White v. Johnson, --- F.3d ----, 2005 WL 2857456 (5th Cir.) (Sec. 1983)

Background: Prisoner who had been sentenced to death brought § 1983 action against Executive Director of Texas Department of Criminal Justice, alleging that Texas's method of execution by lethal injection violated his constitutional rights, and seeking injunctive relief. The United States District Court for the Southern District of Texas, Kenneth M. Hoyt, J., dismissed action. Prisoner appealed.

Holding: The Court of Appeals held that prisoner was dilatory in filing action, and dismissal thus was warranted. Affirmed.

PER CURIAM:
Appellant Melvin Wayne White appeals the dismissal of his action seeking injunctive relief under 42 U.S.C. § 1983, in which he alleged that Texas's method of execution violated the Eighth and Fourteenth Amendments of the Constitution. The district court sua sponte dismissed White's action because it determined that he was dilatory in filing his action for equitable relief. We AFFIRM.

I. BACKGROUND

White was convicted of capital murder and sentenced to death on June 17, 1999. Thereafter, White unsuccessfully petitioned for state and federal habeas corpus relief, and on October 11, 2005, the Supreme Court denied White's petition for a writ of certiorari. On October 21, 2005, White filed a § 1983 action, requesting a permanent injunction prohibiting the State of Texas from i) injecting him with a combination of sodium pentothal, pancuronium bromide, and potassium chloride; and ii) utilizing any invasive medical procedures to gain venous access for the lethal injection.

II. DISCUSSION

The district court sua sponte dismissed White's action for equitable relief because it determined that, just like the plaintiff in Harris v. Johnson, 376 F.3d 414 (5th Cir.2004), White waited too long to bring his § 1983 claim. We review the district court's sua sponte dismissal de novo. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998).

"[M]ethod of execution actions may be brought in a § 1983 suit instead of a habeas petition," but the § 1983 claim should "not unduly threaten the State's ability to carry out the scheduled execution." Harris, 376 F.3d at 416 (citing Nelson v. Campbell, 541 U.S. 637, 643-48, 124 S.Ct. 2117, 2123-25, 158 L.Ed.2d 924 (2004)). Additionally, the fact that "an inmate states a cognizable § 1983 claim does not warrant the entry of a stay as a matter of right," and "[a] court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief." Nelson, 541 U.S. at 649, 124 S.Ct. at 2125-26 (citing Gomez v. U.S. Dist. Court., 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (per curiam)). White argues that because he is not requesting a stay, the Supreme Court's pronouncements in Nelson should not apply. These rules, however, were declared by the Court in the context of last-minute § 1983 method of execution challenges as well as last-minute stay requests. Id. The principles enunciated by the Court are equally applicable to all types of equitable relief, including permanent injunctions, sought by inmates facing imminent execution.

When weighing equitable remedies, a court "must take into consideration the State's strong interest in proceeding with its judgment and ... attempts at manipulation." Id. Further, "[g]iven the State's significant interest in enforcing its criminal judgments, there is a strong equitable presumption against" last-minute equitable remedy requests. See id. at 650, 124 S.Ct. at 2126. This presumption occurs because the inmate could have brought the action at an earlier time, which would have allowed the court to consider the merits without having to utilize last-minute equitable remedies. See id.

As in Harris, "[w]e do not decide whether [White] properly states a claim under § 1983, because even if he does, he is not entitled to the equitable relief he seeks" due to his dilatory filing. 376 F.3d at 417 (citing Gomez, 503 U.S. at 654, 112 S.Ct. 1652, 118 L.Ed.2d 293). White has been on death row for more than six years, and only now, with his execution imminent, has decided to challenge a procedure for lethal injection that the State has been using for his entire stay on death row. See Harris, 376 F.3d at 417. Like Harris, White has no excuse for delaying his claim until the eleventh hour, and he cannot argue that "he was unaware of the State's intention to execute him by injecting the three chemicals he now challenges." Id. [FN1] Because we conclude that equitable relief for this last-minute challenge to the method of execution is improper, we do not reach the question whether White's claims, to the extent they would require injunctive relief "seemingly without regard to whether the State did or did not resort to the cut-down," see Nelson, 541 U.S. at 648, 124 S.Ct. at 2125 are in effect a successive habeas petition, Id. Nor do we reach the State's arguments for preclusion based on administrative rulings.

III. CONCLUSION For the reasons discussed above, we AFFIRM the district court's dismissal of White's § 1983 action. FN1. Additional hurdles face White's complaint that, because the State might use a cut-down procedure to gain venous access, he will be subject to an Eighth Amendment violation. First, it is counter-factual, as the State denies it will resort to this procedure, and White concedes that IV access has been achieved in his hands several times. Second, this claim is barred from federal review by White's failure to exhaust it pursuant to the PLRA. See, Underwood v. Wilson, 151 F.3d 292 (5th Cir.1998).

White v. Dretke, 126 Fed.Appx. 173 (5th Cir.) (Habeas)

Background: Defendant convicted of capital murder and sentenced to death petitioned for a writ of habeas corpus. The United States District Court for the Western District of Texas denied relief. Defendant applied for a certificate of appealability (COA).

Holdings: The Court of Appeals, Edith H. Jones, Circuit Judge, held that:
(1) state court's rejection of defendant's challenge to the sufficiency of evidence to support jury's affirmative answer to a special punishment issue was not unreasonable, and
(2) ineffective assistance of state habeas counsel cannot provide cause for a procedural default. Application denied.

EDITH H. JONES, Circuit Judge:

FN* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Melvin Wayne White was convicted of capital murder and sentenced to death for the murder of nine-year-old Jennifer Lee Gravell in the course of committing or attempting to commit kidnapping, or in the course of committing or attempting to commit aggravated sexual assault. After exhausting state remedies, White filed a § 2254 petition for a writ of habeas corpus in federal district court raising two grounds for relief. The district court wrote a thorough and well-reasoned opinion that granted the state's motion for summary judgment on the two issues, dismissed White's petition, and refused to grant a certificate of appealability ("COA") on either issue raised.

White now seeks a COA from this court on two issues: (1) whether the evidence admitted at trial and during the punishment phase was sufficient to support the jury's affirmative answer to the future dangerousness special issue; and (2) whether he can show cause to excuse the procedural default of his challenge to the "good-time" jury instruction given at punishment. We deny a COA on each claim.

BACKGROUND

On August 4, 1997, then forty-seven-year-old White kidnapped, sexually assaulted and murdered a nine-year-old girl who lived in his neighborhood in Ozona, Texas. On the night of a neighborhood barbeque, White went home between 10:30 and 11:00 p.m. after consuming several alcoholic drinks. Around this time, the victim came over to his house. White took her in his truck to a roadside rest area where he bound the girl's hands behind her back with electrical tape, stuffed a sock in her mouth and sexually assaulted her with an object--possibly a screwdriver. He also admitted that he penetrated her vagina with his finger. White then killed the girl by repeatedly striking her head with a tire tool and dumped her body behind a water tank in a field outside of town. In a trash can in White's house, investigators discovered the victim's underpants, sandals, and a ball of electrical tape with her hair in it.

At the punishment phase of trial, the prosecution presented evidence that White had forced his daughter to perform oral sex and penetrated her with his finger when she was twelve years old. White's daughter testified that two years later her father had offered her fifty dollars per week if she would provide him with sexual favors upon demand. Further evidence demonstrated that when White was between ten and twelve years old he touched the genitals of a four-year-old relative. Additionally, a witness testified that White allowed teenagers to have parties at his house where alcohol was served, and during a party he touched a teenage girl's breast. Another witness testified that White had watched her engage in sex with his son and later described the events in detail.

Dr. Windell Dickerson, the chief psychologist employed by the Texas prison system, opined for the prosecution that, if one believed that White had raped his daughter, then White posed a very serious risk for further violent conduct. Dr. Dickerson concluded that White was "at substantial risk" or "considerable risk" of committing criminal acts of violence that would constitute a continuing threat to society. Specifically, he stated that "the possibility of Melvin Wayne White doing something else in or out of prison is substantially greater than it is for an individual who is doing okay in their life." Dr. Dickerson further testified that research indicates that sex offenders "tend to commit multiple kinds of sex offenses."

Dr. Dickerson also informed the jury that women serve among the prison staff, and in most units of the prison system, there have been escapes from prison, including one from death row. Further, alcoholic beverages are available inside prison even though their consumption violates prison rules. On June 10, 1999, the jury found White guilty of capital murder. Following a separate punishment hearing, the jury answered in the affirmative the special issues set forth in Texas Code of Criminal Procedure article 37.071(b), and White was sentenced to death. On direct appeal, the Texas Court of Criminal Appeals ("CCA") affirmed White's sentence and conviction in an unpublished opinion. White v. State, No. 73,592 (Tex.Crim.App. Jan. 31, 2001). On September 7, 2000, White commenced a state application for writ of habeas corpus. The state district court held an evidentiary hearing and entered findings of fact and conclusions of law recommending denial of relief. The CCA denied relief in an unpublished order adopting the findings and conclusions entered by the trial court.

* * *

White argued before the district court that an instructional error on the possibility of parole introduced unwarranted uncertainty about the length of time White would be required to spend in prison, and thus tainted his sentencing proceedings with a level of unreliability inconsistent with the protection of the Eighth and Fourteenth Amendments. According to White, his jury was incorrectly instructed that if he received a life sentence, he would be eligible to "earn time off the period of incarceration imposed through the award of good conduct time." White contends that this instruction was incorrect because those sentenced to life prison terms for capital murder are ineligible for good conduct reductions. White admits that his trial attorneys did not lodge an objection to this instruction, and that this issue was not raised on either direct appeal or state habeas proceedings.

The district court rejected White's argument on the basis of procedural bar. White v. Dretke, No. P-01-CV-076, slip op. at 32-33 (W.D.Tex. Apr. 22, 2004). Additionally, the district court determined that an argument that state habeas counsel provided ineffective assistance did not excuse the procedural default. Id. The court alternatively found no merit in White's claim. White now seeks a COA to determine whether he has demonstrated cause to excuse the procedural default of his jury instruction claim.

The law requires that "a state prisoner seeking to raise claims in a federal petition for habeas corpus ordinarily must first present those claims to the state court and must exhaust state remedies." Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir.2001) (citing 28 U.S.C. § 2254(b)). Generally, if the petitioner fails to follow these procedures, his claims will be considered procedurally defaulted and will not be regarded as grounds for granting federal habeas relief. Id. at 239 (citing Keeney v. Tamayo-Reyes, 504 U.S. 1, 9, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992)). However, a petitioner can overcome this procedural default if he can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law. Id. (citing Jones v. Johnson, 171 F.3d 270, 277 (5th Cir.1999)).

White asserts that the ineffective performance of his counsel at each of the state trial, appellate and habeas proceedings provides cause that excuses his default. White argues that because of his state habeas counsel's damaging ineffectiveness, which prevented him from demonstrating counsel's ineffectiveness at the sentencing stage and on direct appeal, he can demonstrate cause excusing the procedural default.

White's argument is foreclosed by circuit precedent. This court has consistently held that ineffective assistance of state habeas counsel cannot provide cause for a procedural default. See, e.g., Ogan v. Cockrell, 297 F.3d 349, 357 (5th Cir.2002); Martinez, 255 F.3d at 245; In re Goff, 250 F.3d 273, 274-76, (5th Cir.2001). This is because there is no underlying right to counsel in state post-conviction review and there is no cognizable constitutional claim based on the ineffectiveness of state habeas counsel. Jones v. Johnson, 171 F.3d 270, 277 (5th Cir.1999); Callins v. Johnson, 89 F.3d 210, 212 (5th Cir.1996). Accordingly, reasonable jurists could not disagree as to whether White has articulated a claim of cause to excuse the procedural default of his claim of instructional error. We therefore deny a COA on this issue.

CONCLUSION Because we DENY White's application for COA on both of the issues raised, we lack jurisdiction to review the district court's denial of habeas relief. COA DENIED.