Hogue v. Johnson

• Decision Date: 12 December 1997
• Docket Number: No. 95-10160,95-10160
• Citation: 131 F.3d 466
• Parties: Jerry Lee HOGUE, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 466

131 F.3d 466

Jerry Lee HOGUE, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 95-10160.

United States Court of Appeals Fifth Circuit.

Dec. 12, 1997.

John H. Blume, Columbia, SC, for Petitioner-Appellant.

Douglas A. Danzeiser, Gary L. Johnson, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Jerry Lee Hogue (Hogue) appeals the district court's denial of his petition for habeas corpus under 28 U.S.C. § 2254 challenging his 1980 Texas conviction and death sentence for murder committed while committing arson. Hogue's primary complaint on appeal is that the admission in evidence at the punishment phase of his trial of a 1974 Colorado guilty plea rape conviction, which in 1994 a Colorado court set aside finding Hogue's counsel there had provided constitutionally ineffective assistance, rendered his death sentence invalid under Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). We reject this claim, holding it procedurally barred by Hogue's failure to object at trial, and, alternatively, because we conclude that under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the admission of the prior conviction did not substantially influence the jury's answer to either of the two punishment issues. We also hold that Hogue is entitled to no relief on either of the two remaining contentions he raises in this appeal, one relating to an allegedly biased juror and the other to the constitutional validity of treating murder while committing arson as a capital offense where the death is caused by the arson. Accordingly, we affirm. ¹

FACTUAL AND PROCEDURAL BACKGROUND

Hogue was indicted for the January 13, 1979, murder of Jayne Lynn Markham (Markham) committed in the course of committing arson, contrary to Texas Penal Code § 19.03(a)(2). ² At his March 1980 trial, at which Hogue was represented by attorneys Coffee and Roe, the jury found Hogue guilty of capital murder and following the subsequent punishment hearing answered affirmatively each of the two special issues called for by the then version of Texas Code of Criminal Procedure Art. 37.071, finding that Hogue's conduct causing Markham's death was committed deliberately with the reasonable expectation that her or another's death would result and that there was a probability he would commit criminal acts of violence constituting a continuing threat to society. ³ Hogue was accordingly sentenced to death. On direct appeal, Hogue was initially represented by attorney Burns, who, on Hogue's request, was replaced by attorney Gray. In March 1986, the Texas Court of Criminal Appeals, en banc, unanimously affirmed the conviction and sentence (two judges concurred in the result without opinion), and in October 1986 the Supreme Court denied certiorari. Hogue v. State, 711 S.W.2d 9 (Tex.Crim.App.), cert. denied, 479 U.S. 922, 107 S.Ct. 329, 93 L.Ed.2d 301 (1986).

Prior Habeases

There then ensued a lengthy series of habeas filings by Hogue and his attorneys, which we outline as follows. ⁴

In January 1987, Hogue, through attorney Alley, filed his first state habeas, which was amended on February 18, 1987. An evidentiary hearing was held on this petition on February 24, 1987, at which Hogue was represented by Alley. The petition was ultimately denied by the Court of Criminal Appeals on March 18, 1987. In the meantime, Hogue's execution had been set for March 24, 1987. On March 20, 1987, Hogue, again through Alley, filed his second state habeas petition and motion for stay of execution, each of which the Court of Criminal Appeals denied on March 22, 1987. On the same day, Hogue, through Alley, filed in the district court below his first federal habeas. The district court granted a stay of execution. On May 7, 1987, Hogue, pro se, moved to dismiss Alley, alleging that Alley was not authorized to file the federal habeas petition. On May 27, Hogue, pro se, moved to amend the federal petition to add forty-nine additional grounds. On July 9, 1987, the district court dismissed the federal petition without prejudice as having been filed without Hogue's authorization, and vacated the stay of execution. On August 11, 1987, Hogue, pro se, filed his third state habeas application, and on August 19, 1987, attorney Burns filed a state habeas application on Hogue's behalf.

These latter two applications were treated as consolidated and on September 25, 1987, were denied by the Court of Criminal Appeals, which also denied stay of execution, which had been set for September 29, 1987.

Also on September 25, 1987, Hogue, through attorneys Mason and Bruder, filed in the district court below an application for stay of execution to permit the filing of a habeas petition in that court, and the district court granted the stay. On October 17, 1987, the district court issued its order directing that Hogue, on or before January 8, 1988, file a habeas proceeding in that court under section 2254 or a state court habeas proceeding, in which Hogue would "present each and every claim known to Petitioner or his counsel on pain of waiver." On January 8, 1988, the district court, on motions filed that day by Hogue, extended the January 8, 1988, deadline to January 22, 1988. On March 29, 1988, the district court, having learned that Hogue was pursuing a state habeas proceeding, vacated the stay of execution it had previously entered and dismissed without prejudice the federal proceedings.

Previously, on January 22, 1988, Hogue, through Mason and Bruder, had filed his fourth state habeas petition (identified in the state trial court as No. C-3-1330-162441-D). Evidentiary hearings, at which Hogue was represented by Mason, were held on this petition on March 24, 1988 (at which Bruder was also present on behalf of Hogue), and August 8, 1988, and a deposition was taken (at which Hogue was represented by Mason). The state trial court made findings of fact and conclusions of law and recommended denial of relief. On January 9, 1989, the Court of Criminal Appeals issued its order denying relief on this habeas (Court of Criminal Appeals No. 16,907-4), noting that it had "carefully reviewed the record" and that "the trial court's findings and conclusions are fully supported by the record."

On April 13, 1989, Hogue, through Mason and Bruder, filed another section 2254 petition in the district court below. On April 18, 1989, the district court stayed Hogue's execution, which had been scheduled for April 20, 1989. On March 16, 1990, Hogue, through Mason and Bruder, moved to dismiss or stay the section 2254 proceedings so he could return to state court to seek relief suggested by Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In July 1990, Mason and Bruder filed a motion to withdraw from their representation of Hogue as he had claimed their inadequate representation entitled him to relief. Also in July 1990, Hogue, pro se, filed in the federal proceeding a pleading complaining of his counsel's failure to investigate certain claims and, later, a memorandum opposing the request of Mason and Bruder to withdraw. On August 22, 1990, the district court appointed Mason and Bruder under the Criminal Justice Act, so they could be compensated, and also appointed an investigator to assist them. This order directed that by October 19, 1990, a supplemental pleading be filed asserting each issue Hogue sought to raise. On November 16, 1990, Hogue, pro se, moved in the federal proceeding to dismiss Mason and Bruder, and to dismiss his section 2254 proceeding without prejudice so he could return to state court. The district court on March 7, 1991, dismissed the cause without prejudice, noting Hogue's November 16, 1990, motion.

On March 22, 1991, Hogue, pro se, filed his fifth state habeas petition (identified in the state trial court as No. C-3-1647-16241-E). On August 5, 1991, the state trial court recommended denial of relief and transmitted the file to the Court of Criminal Appeals. On September 18, 1991, the Court of Criminal Appeals entered its order on this application (identified in the Court of Criminal Appeals as Writ No. 16,907-05), reciting that "[a]ll of the allegations have been raised and rejected either on direct appeal or in previous applications for writ of habeas corpus" and "[w]e hold that the applicant's contentions are not only without merit but have been waived and abandoned by his abuse of the writ of habeas corpus." The order goes on to direct the Clerk of the Court of Criminal Appeals:

"not to accept or file the instant application for writ of habeas corpus. He is also instructed not to accept in the future any applications for a writ of habeas corpus attacking this conviction unless the applicant has first shown that any contentions Meanwhile on September 3, 1991, Hogue, through attorneys Crocker (whom the state trial court had appointed to represent Hogue on May 2, 1991) and Owen, tendered for filing in the state court on Hogue's behalf his sixth state habeas application (identified in the state trial court as No. C-3-1647-16241-F). This application, which runs 173 pages exclusive of exhibits, asserts 36 grounds for relief. On October 17, 1991, the state trial court signed an order, responsive to the Court of Criminal Appeals' September 18, 1991, order, identifying three issues raised in Hogue's sixth state habeas "which have not been and could not have been raised in previous proceedings." In response to a motion filed November 13, 1991, by Hogue, through Crocker and Owen, the state trial court modified its October 17, 1991, order by slightly rewording its statement of the three available issues. ⁶ In December 1991, the state trial court denied a motion filed by...