Lucas v. Johnson

• Decision Date: 09 January 1998
• Docket Number: No. 96-10389,96-10389
• Citation: 132 F.3d 1069
• Parties: Henry Lee LUCAS, 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 1069

132 F.3d 1069

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

No. 96-10389.

United States Court of Appeals Fifth Circuit.

Jan. 9, 1998.

Danny D. Burns, Richard Alley, Fort Worth, TX, for Petitioner-Appellant.

Gena A. Blount, Asst. Atty. Gen., Austin, TX, for Respondent-Appellee.

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

Before KING, JOLLY and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Henry Lee Lucas was sentenced to death after being convicted of capital murder in Texas state court. Following affirmance of the conviction and sentence on direct appeal, Lucas filed three applications for habeas corpus relief in state court. After the denial of the final state application, Lucas filed his first application for habeas corpus relief in federal district court, setting out seventeen alleged errors that he contended warranted relief. The district court denied the application and denied Lucas's request for a certificate of probable cause. Lucas then filed an application for a certificate of probable cause with this court, advancing all seventeen points of error. It is this application that is before us today.

I

Lucas filed his application for a certificate of probable cause in May 1996. One month prior to his filing, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). In the light of the application of the Supreme Court's recent ruling in Lindh v. Murphy, --- U.S. ----, ---- - ----, 117 S.Ct. 2059, 2063-68, 138 L.Ed.2d 481 (1997), and this court's previous determination that Texas does not meet the requirements to "opt in" under the AEDPA, the amendments to the federal habeas statutes do not govern this appeal. 28 U.S.C. § 2261(b); Carter v. Johnson, 110 F.3d 1098, 1104 (5th Cir.1997) (noting Texas fails to qualify to opt in under AEDPA); Mata v. Johnson, 99 F.3d 1261, 1267 (5th Cir.1996), vac'd in part on other grounds, 105 F.3d 209 (5th Cir.1997). Under pre-AEDPA law, a habeas petitioner must obtain a certificate of probable cause ("CPC") prior to pursuing an appeal. 28 U.S.C. § 2253. Generally, the standard used to determine whether a CPC should issue, or, under the AEDPA, whether a certificate of appealability ("COA") should issue, is the same. Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997) (noting the standards for issuance of CPC and COA are identical). Specifically, in order to obtain a CPC, a petitioner must make "a substantial showing of the denial of a federal right." Id.

We therefore analyze Lucas's application for a certificate of probable cause under the pre-AEDPA relevant statutory authority and case law and examine his allegations to determine whether he has made the requisite "substantial showing of the denial of a federal right" with respect to any of the seventeen alleged errors. Under the pre-AEDPA standard, we require the habeas petitioner to "demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement to proceed further." Drinkard, 97 F.3d at 755 (citing Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983)). We hold that Lucas has met his burden in this respect and we grant his request for a CPC.

We turn now to the merits of the arguments advanced by Lucas in his application.

II

Lucas raises the following seventeen issues:

1. His execution would violate the Due Process Clause of the Fourteenth Amendment because he is actually innocent of the crime of capital murder in this case.

2. He has been deprived of due process of law as guaranteed by the Fifth, Sixth, and Eighth Amendments by the actions of the State in seeking his execution when the State has announced, via the Lucas Report, and public statements by the Attorney General, that the evidence acquired and reviewed by the State's chief legal officer substantiates the fact that he is innocent of the charge.

3. His conviction violates the Due Process Clause of the Fourteenth Amendment because the State failed to prove the corpus delicti of capital murder (murder in the course of committing or attempting to commit aggravated sexual assault).

4. His execution in a case in which the victim was never identified would be fundamentally unfair and would be cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

5. His counsel on direct appeal failed to provide effective assistance, because she failed to challenge the State's failure to identify the victim.

6. His attorneys failed to raise several meritorious points, depriving him of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments.

7. The prosecutor improperly commented on his silence at trial and thereby violated his rights under the Fifth and Fourteenth Amendments.

8. The introduction of prior convictions to impeach his chief witness violated the Due Process Clause of the Fourteenth Amendment and rendered his trial fundamentally unfair.

9. The admission of his videotaped statement made in February 1984 undermined the fundamental fairness of his trial, because the statement was taken in violation of his rights to due process and assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments.

10. He was denied the presumption of innocence guaranteed by the Fourteenth Amendment by the admission of his August 1983 videotaped confession, because he is handcuffed in the video.

11. The admission of his June 1983 written statement was erroneous because it was obtained in violation of his right to counsel guaranteed by the Fifth and Sixth Amendments.

12. The admission of his July 28, 1983 confession was erroneous because it was obtained in violation of his right to counsel guaranteed by the Fifth and Sixth Amendments.

13. The admission of his July 31, 1983 audiotaped confession was erroneous because it was obtained in violation of his right to counsel guaranteed by the Fifth and Sixth Amendments.

14. His trial was rendered fundamentally unfair by the admission of evidence of extraneous offenses contained in his July 31, 1983 audiotaped confession.

15. His due process rights under the Fourteenth Amendment were violated by the State's withholding of material exculpatory evidence concerning another suspect in this case.

16. His right to a fair trial was violated by the trial court's failure to provide instructions at the penalty stage that would have allowed the jury to consider the mitigating aspects of evidence of mental illness and an abusive childhood.

17. His original arrest was illegal for lack of probable cause and his subsequent confessions in this matter are tainted by that unlawful arrest in violation of the Fourth Amendment.

We will now address each of Lucas's contentions to determine whether the district court erred when it refused to award Lucas habeas relief.

III

A

Lucas contends that evidence, newly discovered and accumulated after his conviction, conclusively establishes that he is innocent of the crime for which he was sentenced to death. At the outset, we should observe that much of the evidence alleged by Lucas to be newly discovered is neither new nor newly discovered, but in its essence and character, was presented, or available to present, to the trial jury. ¹ See United States v. Freeman, 77 F.3d 812, 816-17 (5th Cir.1996) (setting forth the "Berry" rule for other relief based on newly discovered evidence) (citing Berry v. Georgia, 10 Ga. 511 (1851)). Lucas's trial jury had ample opportunity to consider whether such evidence was convincing of actual innocence and obviously determined that it was not. In any event, it has long been a habeas rule that "the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." Herrera v. Collins, 954 F.2d 1029, 1034 (5th Cir.1992)(quoting Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963)), aff'd, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Contrary to what Lucas argues, the Supreme Court's Herrera opinion does not alter this entrenched habeas principle.

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.... This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution--not to correct errors of fact.

Herrera, 506 U.S. at 400, 113 S.Ct. at 860. Throughout the opinion, the Court returns to its original premise that "a claim of 'actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Id. at 404, 113 S.Ct. at 862. Justice Rehnquist further clarifies that the Court has "never held that [the fundamental miscarriage of justice exception] extends to freestanding claims of actual innocence." Id. at 405, 113 S.Ct. at 863.

The language Lucas seizes upon appears at the end of the opinion where the Court writes:

We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.

Id. at 417, 113 S.Ct. at 869. The Court never held, however, that actual innocence would entitle a petitioner to habeas relief. It simply assumed such a premise arguendo. Id. at 426, 113 S. Ct. at...