66 F.Supp.2d 854 (S.D.Tex. 1999), Civ. A. H-94-4190, Burdine v. Johnson

Docket Nº:CIV. A. H-94-4190.
Citation:66 F.Supp.2d 854
Party Name:Calvin Jerold BURDINE, Petitioner, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
Case Date:September 29, 1999
Court:United States District Courts, 5th Circuit, Southern District of Texas

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66 F.Supp.2d 854 (S.D.Tex. 1999)

Calvin Jerold BURDINE, Petitioner,


Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.

No. CIV. A. H-94-4190.

United States District Court, S.D. Texas, Houston Division.

Sept. 29, 1999

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Robert L. McGlasson, Attorney at Law, Decatur, GA, Mandy Jo Welch, Burr & Welch, Houston, for Petitioner.

Douglas Alan Danzeiser, Office of the Texas Attorney General, Austin, TX, for Respondent.


HITTNER, District Judge.

Pending before the Court is the Petition for Writ of Habeas Corpus filed by petitioner Calvin Jerold Burdine ("Burdine") and the Motions for Summary Judgment filed by respondent Gary Johnson. Having considered the motions, the submissions, the record and the applicable law, this Court determines that Burdine's petition for writ of habeas corpus should be granted and the respondent's motions for summary judgment should be denied.


Burdine was indicted on June 1, 1983 in Cause No. 379444-A and tried in the 183rd District Court, Harris County, Texas for the offense of capital murder in connection with the death of W.T. "Dub" Wise ("Wise"). Wise was killed on April 17, 1983 during the course of a robbery committed by Burdine and another, Douglas McCreight. 1 On January 30, 1984 Burdine was convicted of capital murder. After the jury answered the two special issues affirmatively, the trial court assessed punishment at death by lethal injection pursuant to Tex. Penal Code Ann. § 19.03(a)(2). On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence on October 15, 1986. See Burdine v. Texas, 719 S.W.2d 309 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987).

Burdine subsequently filed a state application for writ of habeas corpus pursuant to the Texas Code of Criminal Procedure article 11.07. The first state habeas appeal was denied on June 29, 1994. See Ex Parte Burdine, Cause No. 37944-A (183rd Dist. Ct. Harris County, Texas, June 29, 1994); Ex Parte Burdine, Writ No. 16,725-02 (Tex.Crim.App., Dec. 12, 1994). In December 1994, Burdine filed a second application for writ of habeas corpus. The trial court conducted an evidentiary hearing on February 3, 1995 on the issues of ineffective assistance of counsel, the constitutionality of a 1971 sodomy conviction against Burdine, and the allegation regarding whether Burdine's constitutional rights were negatively impacted by homophobic conduct during the trial. On April 3, 1995, the trial court (Judge Jay W. Burnett) entered extensive and detailed findings of fact and conclusions of law recommending that habeas corpus relief be granted based

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on Burdine's allegation that trial counsel Joe Cannon ("Cannon") slept through a substantial portion of the trial. See Ex Parte Burdine, Cause No. 37944-B (183rd Dist. Ct. Harris County, Texas, April 3, 1995). The Texas Court of Criminal Appeals, in a one page, unsigned opinion agreed that "the trial court's findings of fact [regarding the sleeping of trial counsel] are supported by the record," but summarily proceeded to hold that Burdine "is not entitled to relief because he failed to discharge his burden of proof under Strickland v. Washington, 446 [sic; 466] U.S. 668[104 S.Ct. 2052, 80 L.Ed.2d 674] (1984)." Ex Parte Burdine, Writ No. 16,725-06 (Tex.Crim.App. April 6, 1995). Three judges of the Texas Court of Criminal Appeals dissented in an opinion stating that "[t]he issue presented in this case has never been addressed by the United States Supreme Court nor by this Court ... this Court has a duty to at least file and set this case so that we can consider the issue." Id., (Maloney, J., dissenting; joined by Baird and Overstreet, J.J.). The dissenting opinion further disagreed with the majority opinion's decision to deny relief for its failure "to give deference to the trial judge who took testimony on this application and who had the duty to weigh the credibility of the testimony." Id.

This Court preliminarily agreed with the dissenting opinion and determined that further analysis of these claims was warranted based on the gravity of the punishment assessed. Thus, on April 10, 1995, Burdine's Motion for a Stay of Execution was granted. At that time, this Court further noted that the Texas Court of Criminal Appeals altogether failed to provide any justification for its rejection of the trial court's conclusions of law while approving the findings of fact. This Court was therefore forced to reexamine the record and the law in this case to determine whether the decision entered by the state court was constitutionally sound.

Burdine now seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254.


This Court is authorized by 28 U.S.C. § 2254(a) to "entertain an application for a writ of habeas corpus on behalf of a person ...[who] is in custody in violation of the Constitution or law of or treaties of the United States." 28 U.S.C. § 2254(e).

Burdine has presented the following issues to this Court in the instant application for writ of habeas corpus:

1. Whether the performance of petitioner's trial counsel, Joe Cannon, including sleeping during substantial portions of petitioner's trial, violated petitioner's constitutional right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments;

2. Whether the State of Texas has forfeited its right to execute petitioner under the Eighth and Fourteenth Amendment;

3. Whether the prosecutor's alleged homophobic remarks to the jury violated petitioner's rights under the Eighth and Fourteenth Amendments;

4. Whether the special issues provided a constitutionally adequate vehicle for jurors to consider mitigating evidence of petitioner's "non-triggerman" status;

5. Whether petitioner's jury could have given adequate mitigating effect to his childhood sexual abuse and an otherwise neglected youth in answering the statutory special issues;

6. Whether the prosecutor's equation of the terms "deliberate" and "intentional" was a violation of petitioner's rights under the Eight and Fourteenth Amendments;

7. Whether the petitioner's rights under the Sixth Amendment's confrontation clause were violated when the prosecutor elicited a great deal of allegedly highly incriminating hearsay about a non-testifying co-defendant's statements to police;

8. Whether the prosecutor's closing arguments during the punishment phase violated the Eighth and Fourteenth Amendments under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) ;

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9. Whether this Court must conduct an evidentiary hearing on petitioner's Fifth Amendment claim under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) because the Texas Courts failed to resolve the factual dispute underlying this claim;

10. Whether the state could rely on petitioner's alleged unconstitutional 1971 sodomy conviction in support of its argument that petitioner posed a future danger to society.


1. Whether the performance of petitioner's trial counsel, Joe Cannon, including sleeping during substantial portions of petitioner's trial, violated petitioner's constitutional right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments.

The state district court conducted an evidentiary hearing to consider Burdine's second state petition for writ of habeas corpus on February 3, 1995. The primary issue at this hearing was whether Burdine's attorney, Cannon, was asleep through substantial portions of his criminal trial. Burdine called a total of eight witnesses, including three jurors from his criminal trial and the clerk of court of the presiding Judge. The state called two witnesses, including Cannon. Because the evidence presented with respect to sleeping counsel is crucial to this Court's determination of Petitioner's ineffective assistance of counsel claim, each witness will be addressed in turn.

Daniel Strickland ("Strickland") was the jury foreperson at Burdine's trial. Strickland testified that on several occasions he saw Cannon "nod off or perhaps doze, ... catch himself dozing ... [he] just kind of dozed off for a few minutes." Although Strickland never watched Cannon for more than thirty seconds at a time due to his attentiveness to the on-going trial proceedings, he did note that Cannon's dozing occurred "before we [returned] the verdict, typically in the afternoon, after the lunch recess." During these periods of sleep "[t]here was either questioning [of witnesses by the prosecutor] or perhaps something being presented as evidence.... it [was] during the [trial] proceedings...." Strickland could not be sure how often Cannon slept, but he observed such conduct "more than two [times] but not more than five times."

A second juror, Myra Davis ("Davis"), testified that she noticed Cannon "nodding," with his eyes closed and chin on his chest, on the second day of trial. Davis recounted how Cannon's head would nod down and then "bounce up" after a short amount of time. More specifically, Davis recalled that there was a "bunch of nodding on the second day ... quite a bit in the afternoon; that it [would not occur] if they were talking to him [Cannon] or they were saying something to him.... As soon as the prosecutor would get on maybe a long spiel of talk for a while, it would start."

The third juror presented by Burdine, Craig Engelhardt ("Engelhardt"), testified that he observed Cannon's "nodding," as well. Engelhardt noted that Cannon would nod with his head down and eyes closed throughout the first and second phases of the trial. On one occasion, Engelhardt recalled how Cannon had to have been asleep because a clerk dropped a book and made a sharp noise, which startled Cannon, and when he "bobbed" his head up, his eyes were red. Engelhardt...

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