Mayabb v. Johnson

• Decision Date: 12 March 1999
• Docket Number: No. 97-10551,97-10551
• Parties: Richard Michael MAYABB, 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 863

168 F.3d 863

Richard Michael MAYABB, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 97-10551.

United States Court of Appeals, Fifth Circuit.

March 12, 1999.

J. Thomas Sullivan, Little Rock, AR, for Petitioner-Appellant.

Charles A. Palmer, Austin, TX, for Respondent-Appellee.

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

Before REYNALDO G. GARZA, STEWART and PARKER, Circuit Judges.

STEWART, Circuit Judge:

Richard Michael Mayabb appeals the dismissal of his petition for habeas relief. Mayabb raises four issues: (1) erroneous jury instructions on the charge of murder; (2) ineffective assistance of counsel during the trial and subsequent appeal of his conviction; (3) exclusion of polygraph evidence; and (4) retroactive application of an amendment to Texas's parole laws. For the reasons assigned, we AFFIRM.

FACTS

Richard Michael Mayabb was convicted of murder by a Texas jury in June 1980. ¹ As Mayabb was parking his car in a restaurant parking lot, he nearly hit Kelvin Franks's car. Franks and Mayabb began shouting at each other. Franks exited his car, carrying a beer bottle in his hand behind his back. Franks was taller and heavier than Mayabb. Mayabb testified that he took off his glasses because he believed that Franks was going to attack him and that without his glasses he is legally blind. Mayabb testified that his wife said that Franks had a gun in his hand. Franks threatened Mayabb. When Franks made a gesture which Mayabb believed indicated that Franks was pulling a gun, Mayabb shot him. Mayabb testified that he fired in self-defense because he believed that Franks had a gun and that his wife was in danger.

Mayabb was charged with murder. The trial court instructed the jury on the murder charge and on the lesser-included-offense of voluntary manslaughter, which included the definition of "sudden passion," without objection from either Mayabb or the State, and on self-defense. ² The jury found Mayabb guilty of murder. The trial court sentenced Mayabb to serve 90 years in prison and found that Mayabb used a deadly weapon during the commission of the offense.

Among other issues, Mayabb argued on direct appeal that the trial court erred in rejecting the language of his proposed self-defense jury instructions. On February 28, 1983, Mayabb's conviction and sentence were affirmed on direct appeal. Subsequently, the Texas Court of Criminal Appeals denied his petition for discretionary review on July 13, 1983.

In his first application for state post-conviction relief, Mayabb alleged that the trial court committed fundamental error: (1) by failing to include in the jury charge on murder that the State had the burden of proving that Mayabb was not acting under the influence of sudden passion at the time of the killing; (2) by declining to find ineffective assistance of trial and appellate counsel for failing to raise the jury charge issue; and (3) by failing to deem ineffective his trial counsel's failure to raise a Texas state law claim pertaining to the admission of polygraph test results. According to Mayabb, the trial court misinterpreted Mayabb's jury-charge claim as rearguing his claim regarding the In his second state application, Mayabb asserted that he was entitled to retroactive application of new legislation which decreased the time he must serve before becoming eligible for parole. The Texas Court of Criminal Appeals denied this application without written order on the findings of the trial court without a hearing. The United States Supreme Court denied Mayabb's petition for writ of certiorari. Mayabb v. Texas, 510 U.S. 1060, 114 S.Ct. 729, 126 L.Ed.2d 693 (1994).

self-defense instructions, which he had raised on direct appeal. Similarly, Mayabb contends the trial court concluded that counsel was not ineffective. Mayabb's application was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court without a hearing.

On April 12, 1995, Mayabb filed a petition for writ of habeas corpus, 28 U.S.C. § 2254. Therein, he alleged that the jury charge on murder which omitted the State's burden of proving that Mayabb was not acting under the influence of sudden passion was fundamentally and constitutional defective. Mayabb further complained that he was denied effective assistance of trial and appellate counsel related to the charge and that Texas law denied him the right to introduce the results of a polygraph test. Furthermore, Mayabb argued that he was denied due process and equal protection by the State's failure to apply retroactively 1987 amendments to Texas parole eligibility statutes. ³ Following an evidentiary hearing and several reports and recommendations by the magistrate judge, and after considering Mayabb's and Respondent's objections, the district court denied Mayabb § 2254 relief and dismissed his petition with prejudice.

On May 27, 1997, Mayabb filed a timely notice of appeal and requested a certificate of appealability (COA). Id. at 316, 317-30. The district court granted a COA "with respect to the murder instruction contained in the jury charge and standard of review of jury charge error in a habeas case." Id. at 331.

Mayabb requested leave from this court to expand the issues for appeal. See loose papers, tab A. Because Mayabb's petition was filed prior to the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), this court determined that pre-AEDPA habeas law should be applied to his claims. ⁴ Id. Because the district court's grant of a COA was the substantive equivalent of a CPC, ⁵ this court determined that Mayabb's appeal was not limited to the issue which the district court determined to warrant a COA. Id.

DISCUSSION

I. Jury Instructions on the Charge of Murder

A.

Mayabb argues that the jury instruction on the murder charge did not include every element of the offense and was in violation of his due-process right to be convicted on proof beyond a reasonable doubt of every element of the offense and that the erroneous instruction infected the entire trial. ⁶

Under Texas law at the time of the offense, if the evidence raised the issue of sudden passion, the State was required to disprove beyond a reasonable doubt the existence of sudden passion. Braudrick v. State, 572 S.W.2d 709, 711 (Tex.Crim.App.1978); see Bradley v. State, 688 S.W.2d 847, 851 (Tex.Crim.App.1985). In such cases, if the State proves all of the elements of murder but fails to prove the absence of sudden passion beyond a reasonable doubt, the jury must acquit the defendant of murder and convict the defendant of voluntary manslaughter. ⁷ Braudrick, 572 S.W.2d at 711.

The jury charge on murder was erroneous under Texas law because it did not place the burden on the State to disprove that Mayabb caused the victim's death under the immediate influence of sudden passion arising from adequate cause. See Cobarrubio v. State, 675 S.W.2d 749, 751 (Tex.Crim.App.1983), overruled on other grounds by Lawrence v. State, 700 S.W.2d 208, 213 (Tex.Crim.App.1985). However, an improper jury instruction rarely justifies federal habeas relief absent a proper objection in the trial court. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). A petitioner must show that the erroneous instruction by itself so infected the entire trial that the resulting conviction violates due process. Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)).

B.

Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) articulates the appropriate standard for determining whether a constitutional error was harmless in a federal habeas challenge to a state conviction or sentence even though no state court ever made any determination whether or not the error was harmless. ⁸ In Brecht [U]nder Brecht, a constitutional trial error is not so harmful as to entitle a defendant to habeas relief unless there is more than a mere reasonable possibility that it contributed to the verdict. It must have had a substantial effect or influence in determining the verdict. We recognize, however, that if our minds are "in virtual equipoise as to the harmlessness," under the Brecht standard, of the error, then we must conclude that it was harmful.

                the Supreme Court held that a federal habeas court may not grant relief on trial errors unless the petitioner demonstrates that the error "had a substantial and injurious effect or influence in determining the jury's verdict."  Brecht, 507 U.S. at 637-38, 113 S.Ct. 1710.   This court has interpreted this standard in the following manner
                

Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir.1996) (citation omitted).

Similarly, in California v. Roy, 519 U.S. 2, 117 S.Ct. 337, 339, 136 L.Ed.2d 266 (1996), the Supreme Court addressed the appropriate standard to review an error in instruction that defined the crime. The Ninth Circuit had crafted a hybrid harmless-error standard. Id. at 338. The Supreme Court held that "harmless error" enunciated in Brecht and O'Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995), was the proper standard to review jury instructions. Id. Upon application, when a federal judge in a habeas proceeding is in grave doubt about whether trial error of federal constitutional law had substantial and injurious effect or influence in determining jury's verdict, that error is not harmless, and petitioner must win. O'Neal, 513 U.S. at 436, 115 S.Ct. 992 (1995).

C.

According to Mayabb, the district court erred by: (1) characterizing sudden passion as a defense rather than an element of murder which the State must disprove when raised by the evidence and; (2) failing to credit the state trial court's implicit finding of sufficient evidence of sudden passion to support a voluntary-manslaughter charge. Mayabb...