Mann v. Scott
| Decision Date | 21 December 1994 |
| Docket Number | No. 93-9006,93-9006 |
| Citation | 41 F.3d 968 |
| Parties | Fletcher Thomas MANN, Petitioner-Appellant, v. Wayne SCOTT, Director Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Dean S. Neuwirth, Martin D. Beier, Coghill & Goodspeed, Denver, CO, Mandy Welch, Houston, TX, and ARCO Coal--Legal, Scot W. Anderson, Denver, CO, for appellant.
Douglas M. O'Brien, Moen, Cain, Royce & O'Brien, Houston, TX, for amicus curiae.
William C. Zapalac and Dan Morales, Atty. Gen., Austin, TX, for appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before KING, HIGGINBOTHAM, and JONES, Circuit Judges.
Fletcher Thomas Mann, a Texas death row inmate convicted of capital murder, appeals the district court's denial of his petition for a writ of habeas corpus. For the reasons set forth below, we affirm.
Mann was convicted of the 1981 murder of Christopher Lee Bates and sentenced to death by a Texas jury. Mann's conviction was affirmed by the Texas Court of Criminal Appeals on October 22, 1986. Mann v. State, 718 S.W.2d 741 (Tex.Crim.App.1986). The United States Supreme Court denied certiorari on April 6, 1987. Mann v. Texas, 481 U.S. 1007, 107 S.Ct. 1633, 95 L.Ed.2d 206 (1987).
Mann began a collateral attack on his conviction by filing his first petition for a writ of habeas corpus and stay of execution in the Criminal District Court of Dallas County, Texas; the judge recommended that Mann's petition be denied on the merits. On June 23, 1987, the Texas Court of Criminal Appeals accepted the state trial court's recommendation and denied Mann's petition in an unpublished opinion. The same day, Mann filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Texas. The district court granted a temporary stay of execution, but ultimately found Mann's petition to be meritless. Mann v. Lynaugh, 688 F.Supp. 1121 (N.D.Tex.1987). Mann next filed notice of appeal to this court, which dismissed the appeal because it was not timely filed. Mann v. Lynaugh, 840 F.2d 1194 (5th Cir.1988).
On June 17, 1988, Mann filed a motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, claiming that his trial counsel's negligent failure to file a timely appeal should not deny him his right to appellate review. While Mann's 60(b) motion was pending in federal district court, Mann simultaneously filed another petition for a writ of habeas corpus with the Texas Court of Criminal Appeals.
The federal district court granted Mann's 60(b) motion, staying his execution; it also retained jurisdiction over the case and directed Mann to exhaust state court remedies on certain new claims. Mann v. Lynaugh, 690 F.Supp. 562 (N.D.Tex.1988). The Texas Court of Criminal Appeals dismissed Mann's petition without prejudice on grounds that Mann was required by state law to first seek relief from the state trial court. Mann filed his petition with the state trial court on July 12, 1988; however, the state trial court abstained on grounds of comity because the federal district court still retained jurisdiction.
On November 10, 1988, the federal district court lifted its stay of Mann's execution, thereby relinquishing its jurisdiction over the case and freeing the state courts to proceed. Mann then refiled his habeas petition in state court. On January 10, 1989, in an unpublished opinion, the Texas Court of Criminal Appeals denied relief on the recommendation of the state trial court. Since there was no longer any stay order in effect, Mann's execution was scheduled for December 5, 1990.
Mann next sought and received a stay of execution and leave to reinstate his federal habeas petition in the federal district court. 1 The federal magistrate to whom Mann's case was assigned recommended that relief be denied. On September 7, 1993, following a de novo review, the federal district court concurred with the magistrate and entered final judgment denying relief. Mann then filed a timely notice of appeal. Shortly thereafter, the district court issued a certificate of probable cause. For the reasons set forth below, we affirm.
In the early evening hours of September 11, 1980, Mann and Martin David Verbrugge knocked on the door of a Dallas apartment shared by Christopher Bates and Robert Matzig, who were watching a football game with their friend Barbara Hoppe. When Matzig answered the door, Mann and Verbrugge brandished pistols and forced their way inside. Bates and Matzig were instructed to lie on their stomachs on the living room floor and were bound at the arms and legs. Mann and Verbrugge went through their pockets and took their money. Hoppe was taken into the bedroom, where she was beaten, raped and stabbed to death.
Mann exited the bedroom and pointed a gun at the back of Matzig's head. Matzig pleaded for his life, offering to write Mann a check for the full amount in his account. Mann and Verbrugge agreed and ordered Matzig to write several smaller checks and cash them at local grocery stores. Over the next several hours, the four men drove around Dallas in Matzig's car, attempting to cash Matzig's checks. Bates and Matzig were held under gunpoint the entire time. Due to the late hour, Matzig was able to cash only about $75.00 worth of checks. Matzig wrote a final check in the amount of $1,000 which was to be cashed by Mann or Verbrugge the following morning.
Mann directed Matzig to drive to a secluded area. When Mann and Verbrugge alighted from the car, Matzig attempted to drive away, but the car stalled. Mann and Verbrugge forced Matzig and Bates from the vehicle, took them into the woods, and ordered them to lie on their stomachs. Matzig saw Mann standing over Bates' head, preparing to shoot. Matzig tried to run away, but he tripped and fell. Bates was shot in the back of the head with a .38 revolver. Matzig was shot in the neck with a .38 revolver and was severely wounded, but still alive. Matzig heard the gunshots, but he did not see who pulled the trigger. Mann and Verbrugge fled the scene in Matzig's car. Meanwhile, Matzig crawled to a nearby bulk mail center and was rescued. Fearing that Matzig was not dead, Mann and Verbrugge returned to the scene to finish the job; however, the authorities had already arrived on the scene, and the two fled once again.
Mann was charged with murdering Bates in the course of robbing Matzig, a capital crime under Texas law. TEX.PENAL CODE ANN. Sec. 19.03(a)(2) (West 1994). 2 Pursuant to article 37.071 of the Texas Code of Criminal Procedure, the jury answered each of three special issues 3 in the affirmative, and Mann was sentenced to death by lethal injection.
In considering a federal habeas corpus petition presented by a prisoner in state custody, federal courts must generally accord a presumption of correctness to any state court factual findings. See 28 U.S.C. Sec. 2254(d). We review the district court's findings of fact for clear error, but decide any issues of law de novo. Barnard v. Collins, 958 F.2d 634, 636 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993); Humphrey v. Lynaugh, 861 F.2d 875, 876 (5th Cir.1988), cert. denied, 490 U.S. 1024, 109 S.Ct. 1755, 104 L.Ed.2d 191 (1989).
Mann posits eight arguments in his petition to this court: (1) his confession was obtained in violation of his Sixth Amendment right to counsel; (2) the trial court's failure to instruct the jury on the lesser included offense of murder violated his Fourteenth Amendment right to due process; (3) the Texas sentencing statute unconstitutionally prevented him from introducing mitigating evidence at trial; (4) the trial court unconstitutionally excluded certain venire members for cause; (5) the prosecutor's closing comments regarding the word "deliberate" in the Texas capital sentencing statute violated state law and rendered his conviction constitutionally defective; (6) his trial counsel was constitutionally ineffective; (7) the prosecutor's closing argument unconstitutionally misled jurors into believing that they were not responsible for imposing the death sentence; and (8) the federal district court erred by refusing to hold an evidentiary hearing regarding certain mitigating evidence. We proceed to analyze each of these claims.
Mann argues that the state trial court erred in allowing his confession to be placed before the jury because it was obtained in violation of his Sixth Amendment right to counsel. Specifically, Mann contends that the police knowingly circumvented his right to have counsel present during his interrogation in violation of Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985).
A brief recitation of the events leading up to Mann's confession is required in order to fully evaluate his claim. In June 1981, the Dallas police learned that Mann was being held in custody in Bulitt County, Kentucky, on an unrelated rape charge. Detective Gholston of the Dallas Police Department travelled to Kentucky to serve arrest warrants on Mann and to attempt to interview him.
Upon his arrival in Kentucky, Detective Gholston read Mann his Miranda rights and informed Mann that he wanted to speak with him following his arraignment on the Texas charges. The Kentucky court appointed a local attorney, Sean Delahanty, to represent Mann at the arraignment. Following the arraignment and consultation with Mann, Delahanty informed Gholston that Mann was willing to talk, but only if Delahanty were present and asked the questions. Gholston rejected these terms. Delahanty remained at the jail until the close of visiting hours, hoping to ward off an interrogation of Mann.
Later that afternoon, officer Ronnie Popplewell of the Bulitt County...
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