655 F.2d 692 (5th Cir. 1981), 79-1567, Battie v. Estelle

Docket Nº:79-1567.
Citation:655 F.2d 692
Party Name:Billy Joe BATTIE, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, et al., Respondents-Appellees.
Case Date:September 11, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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655 F.2d 692 (5th Cir. 1981)

Billy Joe BATTIE, Petitioner-Appellant,

v.

W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, et al., Respondents-Appellees.

No. 79-1567.

United States Court of Appeals, Fifth Circuit

September 11, 1981

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[Copyrighted Material Omitted]

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Joe James Sawyer, Colorado Springs, Colo. (Court-appointed), for petitioner-appellant.

Joel Berger, New York City, amicus curiae, for NAACP Legal Defense and Educational Fund.

Anthony G. Amsterdam, Stanford Univ. Law School, Stanford, Cal., amicus curiae.

Leslie Benitez, Asst. Atty. Gen., Austin, Tex., for respondents-appellees.

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

Before AINSWORTH and HENDERSON, Circuit Judges, and HUNTER [*], District Judge.

AINSWORTH, Circuit Judge:

Billy Joe Battie, a Texas state prisoner under sentence of death, has appealed the district court's denial of his petition for a writ of habeas corpus. On appeal, petitioner raises only three of the numerous claims originally presented in his petition. 1 Each ground challenges only petitioner's sentence of death and not his conviction. We withheld our decision in this case pending the decision of the Supreme Court of the United States in Estelle v. Smith, --- U.S. ----, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). We hold, in light of Smith, that one of his claims has merit, and reverse the district court. 2

I. Statement of the Case

A. Facts of the Crimes

The evidence introduced at petitioner's trial demonstrated that he murdered a store attendant, Peggy Hester, and a customer,

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John Howard Robinson, during the course of a robbery of a convenience store. On the night of January 13, 1975, Battie entered the In-N-Out Food Store in Fort Worth, Texas, armed with a .410 shotgun along with two accomplices, Artimus Mayfield and Leon Turner. While in the store, Battie trained the shotgun on Hester and Robinson and ordered them to stand against a rear wall of the store while Turner emptied the cash register. After the robbery had been completed, Battie executed both Hester and Robinson with shotgun blasts from point-blank range. Robinson was shot once, Hester twice, and her body was found with her hands clasped together as though begging for her life. All three felons escaped without being seen by any witnesses. Battie was arrested a few days later on an unrelated charge, and sent a note to the police while in custody stating that he "knew something" about the murders. Posing as a witness to the murders, Battie initially implicated someone else as responsible, but ultimately confessed to committing the murders himself. 3

B. State Court Proceedings

Battie was tried for capital murder in Tarrant County, Texas, state court. Prior to trial, Battie's defense counsel filed a motion for a psychiatric examination of the petitioner to determine whether he was competent to stand trial and whether he was insane at the time of the crime. The state trial court granted the defense motion and appointed Dr. Harold B. Eudaly, a psychiatrist, and Dr. Howard Patterson, a clinical psychologist, to examine the petitioner. Dr. Eudaly concluded that the petitioner was not suffering from any psychotic or severe psychoneurotic mental disorder, and submitted a copy of his report to that effect to the state trial judge, but he did not testify at petitioner's trial for either the state or the defense. Dr. Patterson conducted a standard battery of psychological tests on Battie and submitted his report of those test findings to Dr. Eudaly. At the time he conducted the psychological testing of petitioner, Dr. Patterson was unaware of petitioner's background and the facts surrounding the crime charged against petitioner. The tests Dr. Patterson administered did not elicit any facts regarding the crime, and Dr. Patterson did not interrogate Battie about the murders. Instead, Dr. Patterson based his diagnostic evaluation of petitioner entirely upon the results of the tests given Battie. From his testing of petitioner, Dr. Patterson concluded that petitioner was suffering from a sociopathic personality disorder. Dr. Patterson was not called as a witness by either the State or the defense to testify regarding either petitioner's competency to stand trial or sanity at the time of the murders, but was called by the State to testify at the penalty stage of petitioner's trial. 4 On the basis of the test results, he testified that petitioner was a sociopath and therefore, because of the likelihood that a sociopath would continue to follow a violent career, petitioner was likely to commit criminal acts of violence that would constitute a continuing threat to society. 5 This testimony forms the basis of petitioner's challenge to his sentence in this case.

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At trial, petitioner was convicted of capital murder and was sentenced to death. He then appealed his conviction and sentence to the Texas Court of Criminal Appeals, which affirmed the judgment of the trial court. Battie v. State, 551 S.W.2d 401 (Tex.Crim.App.1977). Battie next petitioned the Supreme Court of the United States for a writ of certiorari, and the Supreme Court declined to review his case. Battie v. Texas, 434 U.S. 1041, 98 S.Ct. 782, 54 L.Ed.2d 790 (1978). After the Supreme Court denied his petition, Battie filed his first application for a writ of habeas corpus in state court. This application was denied by the Texas Court of Criminal Appeals. Ex parte Battie, No. 56,106 (Tex.Crim.App. Feb. 1, 1978) (per curiam). Battie's execution date was then set for April 7, 1978. On April 3, Battie filed a second application for post-conviction relief in state court, which was ultimately denied on July 14.

C. Federal Court Proceedings

Battie filed his first federal habeas petition on April 3, 1978 in the District Court for the Northern District of Texas. Judge Eldon B. Mahon granted petitioner a stay of execution but subsequently dismissed his petition without prejudice because of failure to exhaust available state remedies. Following denial of the second state habeas petition, the state trial court reset petitioner's execution for August 25. Battie then filed a second federal habeas petition on August 17 with the same federal district court. Judge Mahon again stayed petitioner's execution and referred the petition to a United States magistrate. Thereafter, the magistrate entered a report containing his factual and legal findings, conclusions, and recommendation that Battie's petition be dismissed. Judge Mahon then adopted the magistrate's report as his own opinion after independently reviewing the record in petitioner's case and dismissed Battie's petition in accordance with the magistrate's recommendation.

II. Self-Incrimination Claim

Petitioner contends that admission of Dr. Patterson's testimony violated his fifth amendment privilege against compelled self-incrimination as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Estelle v. Smith, supra, --- U.S. ----, 101 S.Ct. 1866, 68 L.Ed.2d 359, because he was not advised prior to Dr. Patterson's testing that he had the right to remain silent and that, if he gave up that right, anything he said could be used against him in court at a sentencing proceeding. 6 The State argues that the Supreme Court's decision in Smith should not be applied retroactively and alternatively that, in any event, admission of Dr. Patterson's testimony did not violate petitioner's fifth amendment privilege. We have been enjoined by the Supreme Court to decide potentially dispositive questions regarding the retroactive application of substantive constitutional doctrine prior to passing on to substantive claims assertedly applying that doctrine to a particular case. 7 Accordingly, we first consider the question of whether the Supreme Court's application of Miranda in Smith to diagnostic examinations conducted by mental health experts should be given retroactive effect.

A. Retroactivity of Estelle v. Smith

The constitution does not require that every decision of federal constitutional law be applied retroactively, and a federal court may apply a rule prospectively in certain circumstances. Brown v. Louisiana, 447 U.S. 323, 327, 100 S.Ct. 2214, 2219, 65 L.Ed.2d 159 (1980); Linkletter v. Walker, 381 U.S. 618, 628-29, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965). Whether a decision

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should be given retroactive or prospective application does not turn on the particular constitutional provision forming the basis for the principle expressed in the decision because " '(e)ach constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved.' " Id., at 327, 100 S.Ct. at 2214, quoting Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966). Instead, the determination of whether a decision should be accorded retroactive or prospective effect focuses upon a two-part standard. The first part of this test gauges whether the principle in question is new or is simply a restatement of already established principles and the application of those principles to a particular set of facts. A decision establishes a new principle of law "either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed." Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971) (citations omitted); Caver v. Alabama, 577 F.2d 1188, 1193 (5th Cir. 1978). Only a decision which establishes a new principle of law...

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