Bullard v. Estelle

• Decision Date: 26 September 1980
• Docket Number: No. CA-3-78-0442-G.,CA-3-78-0442-G.
• Parties: Charles Edwin BULLARD v. W. J. ESTELLE, Director, TDC.
• Court: U.S. District Court — Northern District of Texas

502 F. Supp. 887

Charles Edwin BULLARD v. W. J. ESTELLE, Director, TDC.

No. CA-3-78-0442-G.

United States District Court, N. D. Texas, Dallas Division.

August 27, 1980.

On Motion for Reconsideration September 26, 1980.

Charles Edwin Bullard, pro se.

Joe B. Dibrell, Catherine E. Greene, Asst. Attys. Gen. by Catherine E. Greene, Douglas M. Becker, Asst. Attys. Gen., Austin, Tex., for defendant.

MEMORANDUM ORDER

PATRICK E. HIGGINBOTHAM, District Judge.

In this habeas corpus petition under 28 U.S.C. § 2254, petitioner seeks relief from a conviction for felony theft, enhanced by two prior felony convictions, and resultant life sentence. Petitioner was convicted by a jury, but elected to have the court pass sentence. His conviction was affirmed on appeal, but the life sentence assessed against him was vacated due to insufficiency of the evidence to show that petitioner was the defendant who was convicted in one of the two prior convictions introduced in the punishment phase of his trial. Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App. 1976). The case was remanded to the trial court, which received additional evidence and again imposed a life sentence.¹ The Court of Criminal Appeals affirmed. Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App. 1977).

Petitioner asserts six grounds for relief:

1. His constitutional rights were violated when the prosecutor sought and obtained a reindictment on the charge of enhanced felony theft upon petitioner's refusal to plead guilty to a prior indictment alleging felony theft alone.

2. His constitutional rights were violated by the prosecutor's comment in oral argument on petitioner's failure to testify.

3. The evidence adduced during the guilt-innocence phase of his trial was insufficient to sustain the verdict of guilty.

4. The trial court erred in denying him a jury during the punishment phase of his trial after remand by the Texas Court of Criminal Appeals.

5. His fifth amendment right not to be placed twice in jeopardy for the same charge was violated in permitting the prosecution to present evidence at petitioner's sentencing proceeding after remand by the Texas Court of Criminal Appeals.

6. The imposition of a life sentence in his case constituted cruel and unusual punishment in violation of the eighth amendment.

The respondent, the magistrate, and the court agree that state remedies have been exhausted.

I. Grounds One Through Four

The court agrees with the magistrate that petitioner's first ground for relief is squarely foreclosed by Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Accord, Montgomery v. Estelle, 568 F.2d 457 (5th Cir.), cert. denied, 439 U.S. 842, 99 S.Ct. 135, 58 L.Ed.2d 141 (1978), on all fours with the present case.

Nothing in the prosecutor's closing argument may reasonably be construed as a comment on petitioner's failure to testify. The gist of the prosecutor's challenged argument was that the defendant's intent could be inferred from his acts, an entirely proper form of argument. The prosecutor did refer to "acts done, words spoken" as measures of intent, and then state that "no one has any words of Charles Bullard." Taken in context, however, this remark refers to the facts that none of the prosecution witnesses had testified to words spoken by petitioner, and not to petitioner's failure to testify. In any event, the error appears harmless.

The evidence is sufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence, summarized in Bullard v. State, supra, 533 S.W.2d at 814-15, showed that petitioner brought a TV set and stereo to a food store and left without those items. Police undercover agents observed the items, later identified as stolen, in the store, and testified that they were the only such items in the store. The items were recovered from a suspect who had taken them from the store. The owner positively identified the items, and testified that he had paid about $700 for them. This evidence, together with reasonable inferences which may be drawn therefrom, is sufficient to permit a reasonable jury to find petitioner guilty beyond a reasonable doubt of felony theft over $200. See Jackson v. Virginia, supra.

There is no independent Federal constitutional right to have a jury fix punishment. James v. Twomey, 466 F.2d 718, 720-21 (7th Cir. 1972); Payne v. Nash, 327 F.2d 197, 200 (8th Cir. 1964); cf. Parrish v. Beto, 414 F.2d 770 (5th Cir. 1969), cert. denied, 396 U.S. 1026, 90 S.Ct. 606, 24 L.Ed.2d 522 (1970) (guilty plea). Denial of a state-created right to assessment of punishment by a jury may, however, constitute a denial of due process. Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). In the Hicks case, a mandatory sentence under an invalid statute was upheld by a state court, notwithstanding a state statute providing for jury assessment of punishment, on the ground that the invalid mandatory sentence was within the range the jury could properly have assessed. The Supreme Court vacated and remanded, holding that arbitrary disregard of the state-created right was a denial of due process.

In contrast to Hicks, where a state court acknowledged a state right to jury trial on punishment, applicable in the defendant's case, but declined to afford such a right because it was deemed unnecessary, the Texas Court of Criminal Appeals expressly held that Texas did not afford a right to jury trial on punishment in petitioner's case. Bullard v. State, supra, 548 S.W.2d at 16-21. See Ex Parte Marshall, 72 Tex.Cr.R. 83, 161 S.W. 112 (1913) (no Texas constitutional right). That court's opinion in Bullard was based on a principled consideration of the legal arguments favoring and opposing a right to jury under the facts of petitioner's case, and cannot be characterized as an arbitrary disregard of otherwise applicable state law. This being the case, no claim is stated by the fourth ground for relief.

Petitioner's fifth ground presents the most substantial and difficult questions. He argues that the presentation of new evidence at his punishment hearing following reversal of his earlier sentence violated the double jeopardy clause as interpreted in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Two questions are presented: First, are the decisions in Burks and Greene to be applied retroactively?² Second, do those decisions prohibit a new punishment phase trial resulting in a life sentence where the punishment phase of an earlier trial has been reversed for insufficiency of the evidence to support a life sentence? A negative answer to either question will require dismissal of petitioner's fifth ground.

II. Retroactivity of Burks and Greene

The general approach to retroactivity of decisions expanding the scope of constitutional protections in a criminal context has since 1965 been that set forth in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and elaborated upon in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Desist v. United States, 394 U.S. 244, 248, 89 S.Ct. 1030, 1032, 22 L.Ed.2d 248 (1969). Under this test, retroactivity depends on the balancing of three factors: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Desist v. United States, supra, at 249, 89 S.Ct. at 1033.

While it is the general rule that "the retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based," Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the Supreme Court made it clear in Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), that some double jeopardy cases are sui generis so far as retroactivity is concerned. Eschewing the Linkletter analysis, the Court unanimously held that

the guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Linkletter cases were found not to affect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

409 U.S. at 509, 93 S.Ct. at 878. The Court went on to hold retroactive the rule in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), that prosecution for the same offense may not be had both in municipal and in state court. The Court failed, however, to articulate a standard governing retroactivity of double jeopardy decisions generally. Of the three Linkletter/Desist tests, the Court discussed only that of prejudice to the state due to reliance on prior law: "We would not suggest that the distinction that we draw is an ironclad one that will invariably result in the easy classification of cases in one category or the other. The element of reliance embodied in the Linkletter analysis will not be wholly absent in the case of constitutional decisions not related to trial procedure ...." 409 U.S. at 509, 93 S.Ct. at 878.

Recent cases in the circuits have construed Robinson as establishing a virtual per se rule of retroactivity in double jeopardy cases involving the prohibition of a second trial rather than procedural...