Mattheson v. King

• Decision Date: 22 January 1985
• Docket Number: No. 84-3114,84-3114
• Citation: 751 F.2d 1432
• Parties: Howard MATTHESON, Petitioner-Appellant, v. John T. KING, Secretary of the Department of Corrections, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1432

751 F.2d 1432

Howard MATTHESON, Petitioner-Appellant, v. John T. KING, Secretary of the Department of Corrections, et al., Respondents-Appellees.

No. 84-3114.

United States Court of Appeals Fifth Circuit.

Jan. 22, 1985.

Matt Greenbaum, New Orleans, La., for petitioner-appellant.

William R. Campbell, Jr., Susan Scott Hunt, Asst. Dist. Attys., New Orleans, La., for respondents-appellees.

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

Before REAVLEY, RANDALL and WILLIAMS, Circuit Judges.

RANDALL, Circuit Judge:

Howard Mattheson was convicted in a Louisiana court of the first degree murder of Mamie Dupaquier and sentenced to death. After exhausting state remedies, Mattheson filed an amended application for federal habeas relief. On January 16, 1984, the district court denied Mattheson's amended application and declined to issue a certificate of probable cause to appeal. On April 27, 1984, we granted Mattheson's motion for a certificate of probable cause to allow him an opportunity to address the merits of his appeal. For the reasons set forth below, we affirm the district court's denial of the writ of habeas corpus.

I. FACTUAL AND PROCEDURAL HISTORY.

The Louisiana Supreme Court described the details of the crime at length in State v. Mattheson, 407 So.2d 1150, 1155 (La.1981), and we repeat them here only to the extent made necessary by our analysis. On March 9, 1978, Mattheson and his wife, Willene I. Mattheson, entered the Hair Wiz beauty salon in New Orleans. Although the salon was crowded, Mamie Dupaquier, the 75-year-old receptionist, was the sole person in the reception area, located a few feet below the main area. Mattheson, armed with a double-barreled sawed-off shotgun, approached Dupaquier and almost immediately shot her in the head at pointblank range. The blast tore away most of her skull and brain tissue, resulting in her death.

Following the shooting, Mattheson ran up the stairs and ordered the 20-25 people there to lie down on the floor. Mattheson told these people that he had just killed one person and that he would kill again if his orders were not followed. He then directed one of the employees to tape everyone's hands behind their backs. Mattheson reloaded and, with the help of his wife, began rifling through all of the women's purses. One woman refused to give up her purse and informed Mattheson that he would have to kill her first. Mattheson responded that he would instead shoot the woman next to her. At that point, Mattheson shot Laura McGoey, who was lying next to the woman refusing to relinquish the purse, in the leg.

Soon thereafter, several more people entered the salon. Mattheson told them that this was not a joke, that one person had already been killed, and that he would not hesitate to kill again. After collecting the money and other valuables, Mattheson and his wife ripped the telephones off the wall and fled. Later that evening, both were apprehended while dining at a nearby restaurant.

At trial, ¹ Mattheson's sole theory of defense was that he lacked the specific intent needed for the commission of first degree murder and that, as a result, the jury should find him guilty of murder in the second degree (felony murder). Under the Louisiana law at that time, a person could be sentenced to death only if he was convicted of first degree murder. ² In support of his theory, Mattheson testified that on the day of the robbery he had consumed a quart and a half of vodka and was on drugs (LSD). Mattheson though declined to rely on intoxication itself as a reason for his lack of specific intent. Rather, Mattheson, through counsel, argued that the alcohol and drugs had made him clumsy. Mattheson alleged that, when confronted with the gun, Dupaquier had smiled and poked her finger at it, as if she did not believe it was real. She then had pulled the gun toward her, he had pulled back on it, and the gun had accidentally discharged. ³ Mattheson contended that the shooting of McGoey was accidental as well. The jury convicted Mattheson of first degree murder at the guilt phase of the trial and subsequently condemned him to death at the sentencing phase.

The Louisiana Supreme Court on appeal affirmed Mattheson's conviction and sentence. State v. Mattheson, 407 So.2d 1150 (La.1981). Thereafter, the United States Supreme Court denied Mattheson's petition for a writ of certiorari. --- U.S. ----, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983). Mattheson then on August 12, 1983, filed his initial federal habeas action under 28 U.S.C. Sec. 2254, alleging five grounds for relief, only one of which--denial of immunity for Mattheson's wife to testify--was realleged in the present petition. The District Court for the Eastern District of Louisiana denied the first petition and refused to stay Mattheson's execution. On appeal we stayed Mattheson's execution, vacated the district court's judgment in part, and remanded for further proceedings on Mattheson's claim that the state had introduced uncounseled prior convictions at trial, because we could find no basis in the record to determine whether the prior convictions had been uncounseled. Mattheson v. Maggio, 714 F.2d 362 (5th Cir.1983). Before the district court could hold an evidentiary hearing on the issue, however, the parties entered into a stipulation to dismiss the action without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(ii).

With the aid of new counsel, Mattheson filed a state habeas action asserting claims identical to those in the present petition. Following an evidentiary hearing on all of Mattheson's contentions, the state district court denied the petition and set a new execution date. The Louisiana Supreme Court affirmed without opinion. Then, on December 2, 1983, Mattheson filed the instant action, which was summarily denied by the federal district court. Although the state expressly disavowed any reliance on the first federal habeas action as a basis for challenging the present action, the district court, on its own motion and without a hearing, concluded that the petition constituted an abuse of the writ under federal habeas corpus rule 9(b). We again stayed Mattheson's execution and remanded, this time for a hearing on the issue of abuse of the writ. ⁴ Mattheson v. King, 721 F.2d 483 (5th Cir.1983).

On remand, the district court consolidated the hearing on abuse of the writ with a hearing on the merits of Mattheson's ineffective assistance of counsel claim. In a written order following the hearing, the court held first that the petition did not amount to an abuse of the writ and then addressed the merits of the petition. Although recognizing that the findings of the state court on the ineffective assistance of counsel claim carried the presumption of correctness, see 28 U.S.C. Sec. 2254(d), the district court made independent findings of its own and concluded that Mattheson's counsel was effective. With respect to Mattheson's other contentions, the district court disposed of them without explanation, stating simply that they were all "without merit." ⁵ Mattheson filed a timely notice of appeal, and we granted Mattheson's motion for leave to appeal in forma pauperis and for a certificate of probable cause. ⁶

II. ISSUES ON APPEAL.

Mattheson presents essentially ten issues for appellate review. Mattheson claims his constitutional rights were violated because (1) he was denied the effective assistance of counsel; (2) the trial court's exclusion of jurors who were unambiguously opposed to imposing the death penalty resulted in a jury that was conviction-prone and unrepresentative of the community; (3) the trial court erroneously refused to grant use immunity to Mattheson's wife; (4) the state suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (5) the firing of the murder weapon in open court rendered the trial fundamentally unfair; (6) the prosecutor in the course of trial made certain remarks and introduced evidence with the sole purpose of inflaming the jury; (7) the method in which the Louisiana Supreme Court reviewed the proportionality of Mattheson's sentence was inadequate; (8) the death sentence imposed was substantially more severe than the majority of sentences meted out in Louisiana for similar crimes; (9) the imposition of the death sentence would result in Mattheson's execution while insane; and (10) the death penalty in Louisiana is applied in a racially discriminatory and arbitrary manner.

In his amended petition for habeas relief, Mattheson also asserted that (1) the prosecutor improperly inquired whether Mattheson upon arrest had indicated to the police that he was intoxicated, ⁷ and (2) his right of executive review was violated by his death warrant having been signed by a Louisiana district judge rather than by the governor. ⁸ Mattheson, however, does not press these claims on appeal. We, therefore, deem them abandoned and do not address them. Baker v. Estelle, 711 F.2d 44, 45 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 724, 79 L.Ed.2d 185 (1984); Davis v. Maggio, 706 F.2d 568, 571 (5th Cir.1983).

We consider each of Mattheson's contentions asserted on appeal in turn.

III. DISCUSSION.

A. Ineffective Assistance of Counsel.

Mattheson's principal contention on appeal is that he was denied effective assistance of counsel at both the guilt phase and the penalty phase of the trial. ⁹ In support of this claim, Mattheson asserts that defense counsel (1) failed to interview the over twenty persons who were at the scene of the crime; (2) failed to conduct any independent pretrial investigation; (3) failed to exercise any peremptory challenges; (4) failed to request any special jury charges; (5) failed to engage in meaningful consultation with Mattheson before trial; (6) failed to investigate Mattheson's mental state or to seek appointment of a psychiatric, medical, or...