697 F.2d 593 (5th Cir. 1983), 82-1680, Barefoot v. Estelle

Docket Nº:82-1680.
Citation:697 F.2d 593
Party Name:Thomas A. BAREFOOT, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
Case Date:January 20, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 593

697 F.2d 593 (5th Cir. 1983)

Thomas A. BAREFOOT, Petitioner-Appellant,


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

Corrections, Respondent- Appellee.

No. 82-1680.

United States Court of Appeals, Fifth Circuit

January 20, 1983

Page 594

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.


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

Page 595

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

    Page 596

    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...

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