Felder v. Johnson

• Decision Date: 30 June 1999
• Docket Number: No. 98-20575,98-20575
• Citation: 180 F.3d 206
• Parties: Sam FELDER, Jr., also known as Sammie Felder, 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 206

180 F.3d 206

Sam FELDER, Jr., also known as Sammie Felder, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 98-20575.

United States Court of Appeals, Fifth Circuit.

June 30, 1999.

Michael P. Bowen, Jay S. Topkis, Elizabeth Danya Perry, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for Petitioner-Appellant.

Douglas A. Danzeiser, Austin, TX, for Respondent-Appellee.

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

Before HIGGINBOTHAM, JONES and DENNIS, Circuit Judges. ¹

EDITH H. JONES, Circuit Judge:

Sam Felder, a death row prisoner in Texas, appeals the district court's denial of his petition for a writ of habeas corpus. He raises numerous issues, three of which are discussed in depth in this opinion. First, Felder challenges the constitutionality of the "Texas waiver rule," which--until it was abrogated last year--treated a criminal defendant's admission of guilt during the punishment phase of his trial as a guilty plea that waived all guilt-phase trial errors. This claim is Teague-barred. Second, Felder argues that the prosecution violated his due process rights by suppressing the arrest record of a government witness. Third, Felder argues his representation was constitutionally deficient. Because these claims and the others raised by Felder are meritless, the district court's denial of habeas corpus is affirmed.

I. Facts and Procedural Background

Felder's habeas petition arises from the third time he was convicted and sentenced to death for the 1975 murder of James C. Hanks. The first two convictions were reversed on appeal or collateral review. ² The third conviction occurred in 1989 and was affirmed by the Texas Court of Criminal Appeals in 1992. ³

Testimony at Felder's third trial established that James Hanks, a 41-year-old quadriplegic, was fatally stabbed with scissors in the temples and neck--among the few areas of his body in which he could feel pain--in the early morning hours of March 14, 1975. Because of his quadriplegia, Hanks lived in a Houston apartment complex for the disabled where he could receive frequent care and services. That morning, when an attendant came to reposition Hanks as he slept, she discovered that Hanks's door was open, though she had closed it on her previous stop two hours before. (Because Hanks's mother, who normally lived with him, was temporarily in the hospital, his apartment door was being left unlocked that week.)

Hanks was found in his bed, with his head contorted into an awkward position. His breathing was very faint, and he had wounds on the sides of his head. ⁴ The mattress was bloody. Hanks's wallet, which he kept under his pillow when he slept, was missing. The pillow was on the floor. Also missing was a pair of stainless-steel surgical scissors that was usually kept on a table near Hanks's bed. Hanks, comatose, was taken to a hospital and placed on life support. When it was later determined that Hanks was brain dead, he was removed from the life support system.

Felder worked for the company that provided services to the disabled residents in Hanks's apartment complex. He was an attendant whose duties extended to about fifteen residents, including Hanks. On the day before Hanks was found stabbed, Felder worked until 2:00 or 3:00 P.M. He was scheduled to work the day Hanks was found, but he did not report to work that day or later, or ever make arrangements to receive his last paycheck. Felder was arrested one month later in Idaho Falls, Idaho, when he was unable to produce valid identification during a traffic stop and found to have a concealed .38 caliber pistol.

Edith Cobb testified that she had seen Felder in Denver for "a couple of weeks" in late March and early April--after Hanks's death and before Felder's arrest. Cobb had met Felder in August 1974 and helped him get a job in Denver before he returned to Houston in November 1974. When Felder re-appeared in Denver in March 1975, Cobb asked Felder if he would like her to get him another job. Cobb testified that Felder told her "he had killed a man in ... Houston, and that he couldn't get a job." Felder told Cobb that he had been working in some kind of hospital and had seen a paralyzed man with a lot of money. After getting off of work in the afternoon, Felder returned at 2:00 or 3:00 A.M., armed with a .38 caliber handgun, to rob the man. When Felder tried to take the money, the man woke up, recognized him, and, calling him by name, asked Felder what he was doing. Felder then grabbed a pair of scissors next to the bed and "started stabbing him in his head and throat and back and forth and back and forth and back and forth and then he took the pillow and was--kind of smothered--the man was crying and hollering, please don't hurt me, and ... he just kept stabbing him back and forth...." When it looked like the man was still breathing, Felder stabbed him more times. Finally, when it looked like the man was dead, Felder took the money, over $300, and drove off in his car, throwing the scissors out the window on his way home. That day, his brother took him to the airport, and Felder flew to Denver, having packed the pistol in his suitcase. Cobb testified that Felder was "kind of laughing" when he recounted the killing. When she asked Felder why he had to kill the man, Felder said, "a dead man tells no tales."

Cobb saw Felder frequently over the next several days. He told her that he called his sister in Texas every day to ask whether the police were looking for him. Eventually, Felder heard from his mother that he should not come back to Texas because he was wanted by the police. Cobb last saw Felder on April 9, 1975, five days before he was arrested in Idaho.

After the jury found Felder guilty of capital murder, Cobb testified in the punishment phase of his trial. She described other crimes Felder told her he had committed in Denver. The jury answered both special issues in the affirmative, and Felder was sentenced to death.

After his conviction and sentence were affirmed on direct appeal, Felder filed a habeas petition in state court. The state district court's denial of relief was affirmed by the Court of Criminal Appeals in 1995. Felder's federal habeas petition was denied by the district court in 1998. The district court granted a certificate of probable cause. Felder now appeals the denial of habeas relief.

II. Standard of Review

This case is governed by pre-AEDPA habeas standards because Felder's petition was filed before April 24, 1996. See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir.1997). This means that state-court fact findings are binding on federal courts when they are "fairly supported by the record." 28 U.S.C. § 2254(d)(8) (1994) (amended 1996). Legal questions, however, as well as mixed questions of law and fact, are reviewed de novo. See Johnson v. Puckett, 176 F.3d 809, ---- (5th Cir.1999).

The district court in this case mistakenly recited AEDPA standards. Yet, because the record is complete, and virtually every issue must be reviewed de novo, we need not remand the case for further fact findings. Cf. Magouirk v. Phillips, 144 F.3d 348, 362-63 (5th Cir.1998) (remanding on fact-based claims where state trial transcript was missing from federal record and magistrate judge incorrectly applied heightened, AEDPA-level deference).

III. The Texas Waiver Rule

At the time of Felder's trial, Texas law treated a defendant's admission of guilt during testimony in the punishment phase of a bifurcated trial as waiving for appeal any guilt-phase trial errors. See McGlothlin v. State, 896 S.W.2d 183, 186 (Tex.Crim.App.1995); DeGarmo v. State, 691 S.W.2d 657, 660-61 (Tex.Crim.App.1985). This procedure, known as the DeGarmo doctrine or "Texas waiver rule," was abrogated by the Texas Court of Criminal Appeals in December 1998. See Leday v. State, 983 S.W.2d 713, 725-26 (Tex.Crim.App.1998).

Felder argues that the Texas waiver rule--when combined with the district court's refusal to grant a motion in limine for his proposed punishment-phase testimony--unconstitutionally chilled his Fifth Amendment rights and compromised his Eighth Amendment right to present all mitigation evidence. The waiver rule purportedly achieved this result through the excessive threat it posed to Felder if he decided to testify and risk opening the door to cross-examination questions about his guilt. While testifying in a bill of exceptions, Felder agreed that he wanted "to give testimony regarding [his] feelings about [his] remorse in regards to this offense," that he wanted to describe how he had "changed" since he had been to prison, and, in his own words, said, "I wanted to explain to the Court how I felt about things." He also said that he would deny Edith Cobb's allegations that he had committed other crimes in Denver.

The district court rejected Felder's claim. This court has never ruled on the constitutionality of the Texas waiver rule under the Fifth or Eighth Amendment. ⁵

No matter how we characterize Felder's constitutional claims, however, they are not cognizable in this habeas corpus proceeding because of the anti-retroactivity rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Teague resolved that federal habeas relief may not be granted based on "new" rules of constitutional law. Under Teague a new rule is one in which the result was not "dictated by precedent existing at the time the defendant's conviction became final." Id. at 301, 109 S.Ct. at 1070 (plurality opinion) (emphasis in original); see also Lambrix v. Singletary, 520 U.S. 518, 527-28, 117 S.Ct. 1517, 1525, 137 L.Ed.2d 771 (1997).

Felder's conviction and sentence became final for Teague purposes on October 4, 1993, when the Supreme Court denied his petition for certiorari after his conviction was affirmed on direct review in state court. See Caspari v. Bohlen, 510...