541 F.3d 329 (5th Cir. 2008), 06-70006, Oliver v. Quarterman

Docket Nº:06-70006.
Citation:541 F.3d 329
Party Name:Khristian OLIVER, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
Case Date:August 14, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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541 F.3d 329 (5th Cir. 2008)

Khristian OLIVER, Petitioner-Appellant,


Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 06-70006.

United States Court of Appeals, Fifth Circuit.

August 14, 2008

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[Copyrighted Material Omitted]

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Winston Earle Cochran, Jr., Houston, TX, for Oliver.

Edward Larry Marshall, Austin, TX, for Quarterman.

Roy S. Moore, Montgomery, AL, Benjamin David DuPre, Law Offices of Benjamin D. DuPre, Montgomery, AL, for Amici Curiae.

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

Before SMITH, GARZA and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Khristian Oliver (“Oliver" ) seeks habeas corpus relief from his sentence of death for the murder of Joe Collins (“Collins" ). Oliver argues that the jury violated his rights under the Sixth and Eighth Amendments by considering passages from the Bible during the sentencing phase of its deliberations. Although the jury improperly consulted the Bible, the state court found that the Bible did not influence the jury's decision. As Oliver has not presented clear and convincing evidence to rebut this factual finding, we AFFIRM the district court's decision to deny the writ.


Oliver shot Collins after Collins came home to find Oliver burglarizing his house.1 The jury learned that while Collins was lying on the ground after being shot, Oliver struck Collins several times in the head with a rifle butt. At the trial, the medical expert testified that although Collins likely died from the gunshot wounds, the attack with the rifle butt also could have been fatal by itself. A jury convicted Oliver of capital murder based on his killing of Collins during the commission of a burglary. The jury sentenced him to death. Oliver filed a motion for a new trial regarding his sentence, arguing that the jurors, during the penalty phase of their deliberations, improperly consulted the Bible.

At a state court evidentiary hearing on his motion for a new trial, Oliver called four jurors to testify. Kenneth McHaney stated that during the jury's deliberations, one juror, Kenneth Grace, read the Bible aloud to a small group of jurors in the corner of the jury room. McHaney also testified that fellow juror Donna Matheny mentioned to him that the Bible contained

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a passage discussing who is a murderer and who should be put to death, and that he asked Matheny if he could read her Bible, which Matheny had highlighted.2 McHaney recalled reading verses pertaining to the importance of obeying the law of the land, the commandment that “thou shalt not kill," and the passage Matheny pointed out that discussed who is a murderer and who deserves a death sentence. In particular, he recalled reading a passage that says that if a man strikes someone with an iron object so that he dies, then he is a murderer and should be put to death.3 McHaney also witnessed juror Rhonda Robinson reading the same passage from the Bible.4 McHaney believed that there were approximately four Bibles in the jury room, but he could not recall the exact number. He said that many jurors had Bibles with them because they went to church or Bible study at night.

Juror Maxine Symmank stated that she read the Bible to herself while in the jury room and that there was another male juror who read the Bible aloud to a small group of jurors at one end of the table. Symmank could not recall exactly when she read the Bible, although she believed it was after the jury made its punishment determination while the jurors waited for the court to reconvene. She admitted, however, that it is possible that she also read the Bible during earlier parts of the proceedings. Symmank recalled reading the same passage that McHaney had consulted from the Book of Numbers: “And if he smite him with an instrument of iron, so that he die, he is a murderer: the murderer shall surely be put to death." Symmank had decided to read this passage after a fellow juror opened the Bible to that page. Symmank confirmed, however, that no juror explicitly stated that the jury should use the Bible as evidence in its deliberations.

Rodney Rodrigues corroborated the testimony of the previous two jurors that at least one juror read Biblical passages aloud to a small group of jurors at some point during the deliberations. He testified that he did not read the Bible, but that some of his fellow jurors did. He did not know which passages the other jurors read. Finally, Glenda Webb recalled seeing more than one Bible in the jury room, but she stated that the Bible was not a focus of the jury's discussions. She recalled that some jurors consulted the Bible after they had made their decision on the appropriate punishment.

Based on this evidence, the state court ruled that the jury did not act improperly. The court concluded that “a conscientious, dedicated and carrying [sic] jury considered this case in accord with the Court's Charge and the instructions of the Court and rendered their verdict in accord with the evidence they heard in this case uninfluenced by any outside influence of any kind shown to the Court in this hearing." Oliver appealed this ruling to the Texas

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Court of Criminal Appeals (“TCCA" ), which affirmed the trial court's decision to deny a new trial and stated that Oliver had not “met his burden of showing outside influence. While there was testimony that at least one Bible was brought to the jury room and some passages were read by a few jurors, every juror who testified stated that neither the Court nor another juror claimed that the Bible should be considered as law or evidence in the case." The state trial court and the TCCA denied Oliver's state habeas petition.

After exhausting his state court remedies, Oliver sought a writ of habeas corpus from the district court. He argued that the jury improperly consulted the Bible during its deliberations, particularly given that at least one passage the jurors read specifically described the facts of his case. Oliver also presented newly discovered evidence regarding the jury's actions. He alleged that juror Michael Brenneisen, who did not testify at the state court hearing, told foreign journalist Egon Clausen in an interview that the jurors discussed the Bible in depth before they rendered their decision during the punishment phase of the trial.5 Brenneisen told Clausen that he used the Bible during the punishment phase to ensure he was reaching the correct decision. Specifically, Brenneisen remembered asking himself, “is this the way the Lord would decide the case?" He also stated that the jury used the Bible “to lend support for or against the judgment call." He noted that the jury “went both directions in our use of the scripture-forgiveness and judgment." He acknowledged that the jury referred to specific passages in the Bible during its discussions, opening the Bible to various passages and reading them word-for-word. He also told Clausen that his personal belief is that if civil law and Biblical law conflict, then the Biblical law is paramount.6

The district court denied Oliver's habeas petition. The court viewed his argument as a request for an evidentiary hearing and ruled that Oliver is not entitled to an additional hearing under 28 U.S.C. § 2254(e)(2). The court also construed Oliver's claim to be a “pure question of fact" and denied habeas relief pursuant to the standard in § 2254(d)(2) that the state court's decision was not “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." The court, however, granted a certificate of appealability (“COA" ) on whether the jurors' use of the Bible violated Oliver's Sixth or Eighth Amendment rights.

On November 16, 2007, this court issued an opinion denying Oliver's request for a COA on three unrelated claims, denying his request for a stay and abatement for a state or federal hearing, and requesting that the parties file additional briefs on his remaining claims.7 See Oliver v. Quarterman, 254 Fed.Appx. 381 (5th Cir.2007) (per curiam) (unpublished). The only remaining

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question, therefore, involves the merits of Oliver's claim that the jury improperly consulted the Bible when deliberating during the sentencing phase of his trial.


Under the Antiterrorism and Effective Death Penalty Act (“AEDPA" ), a federal court cannot grant habeas relief unless the state court adjudication of that claim either

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d); see Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Under § 2254(d)(1), a decision is contrary to clearly established federal law if “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that precedent]." (Terry) Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision involves an unreasonable application of Supreme Court precedent if it “unreasonably extends a legal principle from [Supreme Court precedent] to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407, 120 S.Ct....

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