Barefoot v. Estelle

• Decision Date: 20 January 1983
• Docket Number: No. 82-1680,82-1680
• Citation: 697 F.2d 593
• Parties: Thomas A. BAREFOOT, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 593

697 F.2d 593

Thomas A. BAREFOOT, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.

No. 82-1680.

United States Court of Appeals Fifth Circuit.

Jan. 20, 1983.

Will Gray, Carolyn Garcia, Houston, Tex., for petitioner-appellant.

Douglas M. Becker, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before REAVLEY, RANDALL and JOLLY, Circuit Judges.

PER CURIAM:

Thomas A. Barefoot was convicted in November, 1978 of murdering a Harker Heights police officer in Bell County, Texas on August 7, 1978. ¹ The Court of Criminal Appeals of Texas affirmed the conviction on March 12, 1980 and denied rehearing on April 30, 1980. Barefoot v. State, 596 S.W.2d 875 (Tex.Crim.App.1980). Barefoot was sentenced to die on September 17, 1980. The United States Supreme Court stayed execution and then dissolved the stay when certiorari was denied on June 29, 1981, 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996. Barefoot was again sentenced to die on October 13, 1981. The state district court denied habeas, as did the Court of Criminal Appeals. The federal district court then stayed the execution on October 9, 1981. After an evidentiary hearing, that federal court denied habeas corpus on November 11, 1982. The State of Texas moved to vacate the stay of execution and the court did vacate it on December 8, 1982. Because the district court granted certificate of probable cause, the denial of habeas is now on appeal in this court. Barefoot has now been resentenced and is to die before sunrise on January 25, 1983. Barefoot moves to stay execution of the sentence pending appeal.

Following the 1978 trial and conviction in Bell County, the Bell County District Court has reviewed the conviction on collateral attack, the Texas Court of Criminal Appeals has reviewed the conviction four times (once on direct appeal and three times on collateral attack), the Supreme Court of the United States has reviewed it on application for certiorari, and the federal district court has held an evidentiary hearing and--after 14 months--upheld the conviction.

1. The Nature of Our Decision

This panel has studied the briefs and record filed with us and has conducted a hearing on January 19, 1983, at which the petitioner's attorney was allowed unlimited time to discuss any matter germane to the decision before us.

That decision is a limited one. This court may interfere with the action of the State of Texas only upon a showing that the Constitution of the United States has been violated. Upon the question of whether to stay execution until the appeal has been processed, we consider the likelihood of success of that appeal. Ruiz v. Estelle, 650 F.2d 555 (5th Cir.1981). There should be a substantial case on the merits of any serious legal question involved in the appeal to warrant staying the decision below. Ruiz v. Estelle, 666 F.2d 854, 857 (5th Cir.1982). If after all these years of study, no constitutional imperfections of substance can be found, it becomes the duty of this court to deny the stay and refuse to interfere with the authorities of the State of Texas as they follow the laws of that state.

2. The Trial Court's Certificate of Probable Cause

We note that the district court's issuance of a certificate of probable cause bears upon our consideration here. In this circuit, "We have equated probable cause ... to a 'substantial showing of the denial of [a] federal right.' " Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), quoting Harris v. Ellis, 204 F.2d 685, 686 (5th Cir.1953). And if the denial of a certificate by a district judge should be given "weighty consideration" by a circuit judge, Nowakowski v. Maroney, 386 U.S. 542, 543, 87 S.Ct. 1197, 1198, 18 L.Ed.2d 282 (1967), then the granting of a certificate should be entitled to similar treatment. However, this does not relieve us of our duty under Fed.R.App.P. 8 to decide the issue for ourselves. To give too much weight to the district court's issuance of the certificate would be to give it preclusive effect on our determination of the stay issue. Rule 8 clearly contemplates that it is the appellate court's responsibility to decide the merits of the stay. ²

This court had the same question before it last month in Brooks v. Estelle, 702 F.2d 84. The stay was denied by this court and also by the Supreme Court. --- U.S. ----, 103 S.Ct. 1490, 74 L.Ed.2d ----, (1982). Justices Brennan, Marshall and Stevens dissented from the denial of the stay. They argued that once a certificate of probable cause has been issued, the appellant "must then be afforded an opportunity to address the merits." Garrison v. Patterson, 391 U.S. 464, 466, 88 S.Ct. 1687, 1688, 20 L.Ed.2d 744 (1968). See also Nowakowski v. Maroney, 386 U.S. 542, 543, 87 S.Ct. 1197, 1198, 18 L.Ed.2d 282 (1967). ("When a district court grants a certificate of probable cause the court of appeals must ... proceed to a disposition of the appeal in accord with its ordinary procedure.")

The simple response to this argument is that since six members of the Court denied the petition for stay, this argument must have been rejected. We respectfully suggest, however, that Nowakowski and Garrison are inapposite here. In Garrison, the court of appeals upon motion for a certificate of probable cause, simultaneously granted the certificate and, without argument on the merits or explanation of its reasons, affirmed the district court. Nowakowski dealt with a denial of leave to proceed in forma pauperis once the district court had granted a certificate of probable cause. The Court's concern was the attempt by the appellate court to circumvent the district court's power to grant a habeas petitioner an appeal.

Neither of these cases addressed a situation in which the party had an opportunity to brief and argue the merits of the underlying issues, nor do they suggest that the stay procedure of Rule 8 is somehow abrogated by the granting of a certificate of probable cause. We think that this case is controlled by Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), more than Garrison and Nowakowski. In Carafas, the Court, as in Nowakowski, reversed the Second Circuit's denial of leave to proceed in forma pauperis. The Court discussed Nowakowski and its implications. The Court stated:

Nothing in the order entered by the Court of Appeals, however, indicates that the appeal was duly considered on its merits as Nowakowski requires in cases where a certificate of probable cause has been granted. Although Nowakowski does not necessarily require that the Court of Appeals give the parties full opportunity to submit briefs and argument in an appeal which, despite the issuance of the certificate of probable cause, is frivolous, enough must appear to demonstrate the basis for the court's summary action.

Id. at 242, 88 S.Ct. at 1562. Our actions here fall under this language. Petitioner's motion is directed solely to the merits. The parties have been also afforded an unlimited opportunity to make their contentions upon the underlying merits by briefs and oral argument. This opinion demonstrates the reasons for our decision. We think, therefore, that the arguments put forth by the dissenters in Brooks should not prevent us from denying this stay if there is an indisputable absence of merit to the petitioner's complaint.

3. Merits of Appeal: Psychiatric Testimony on Dangerousness

The sole issue that petitioner raises on appeal concerns testimony at the sentencing stage by two psychiatric experts regarding appellant's future dangerousness. Neither of these witnesses had interviewed petitioner, but testified on the basis of hypothetical questions. Petitioner argues that the admission of this testimony amounts to constitutional error.

The evidence before the federal district court supported its conclusion that the accuracy of psychiatric predictions of future dangerousness dramatically rises where there has been a pattern of repetitive assaultive and violent conduct. The majority of psychiatric experts accept that view. All of the experts have testified that the conduct of the petitioner, to which the assumed facts adhered in the hypothetical question put to the psychiatrists at the original trial, was the conduct of a severe sociopath. They disagreed over the degree of certainty with which future conduct could be predicted, but this only shows a difference of opinion among professionals--no rarity to the courts or to citizens who serve as jurors. We find no error of law or violation of the constitution in the admission into evidence of those opinions, the proper predicate having been laid.

Petitioner relies on Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), and Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), for the proposition that the due process clause of the Fourteenth Amendment and the cruel and unusual punishment clause of the Eighth Amendment set limits upon the types of evidence that may be presented at a sentencing hearing. He then argues that the doctor's testimony is inherently unreliable. He asserts that the inaccuracy in predicting future dangerousness, particularly when no interview has been conducted, requires that the testimony be excluded. He also argues that since the hypotheticals did not include the mitigating evidence, this increases the inaccuracy of the testimony and permits the jury to avoid consideration of the mitigating evidence by simply relying on the doctors' testimony that the accused was a sociopath who would commit future acts of violence.

In Gardner, the Court dealt with a death sentence in which the trial judge rejected the jury's recommendation of a life sentence on the basis of a confidential pre-sentence investigation report which was not disclosed to the accused. The opinions of the Court reflect a concern...