92 F.3d 1385 (5th Cir. 1996), 88-6108, West v. Johnson

Docket Nº:88-6108.
Citation:92 F.3d 1385
Party Name:Robert Wallace WEST, Jr., Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Case Date:August 19, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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92 F.3d 1385 (5th Cir. 1996)

Robert Wallace WEST, Jr., Petitioner-Appellant,


Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 88-6108.

United States Court of Appeals, Fifth Circuit

August 19, 1996

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Eden Elizabeth Harrington, Texas Resource Center--Austin, Austin, TX, James O. Rebholz, Milwaukee, WI, Paul R. Bottei, Texas Resource Center, Austin, TX, for Petitioner-Appellant.

Robert S. Walt, Austin, TX, William Charles Zapalac, Asst. Atty. Gen., Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee.

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

Before POLITZ, Chief Judge, GARWOOD and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Robert Wallace West, Jr. (West) appeals the district court's denial of his petition under 28 U.S.C. § 2254 challenging his February 1983 Texas conviction and death sentence for the August 1982 intentional murder of Deanna Klaus while in the course of committing or attempting to commit burglary of her motel room, contrary to Texas Penal Code § 19.03(a)(2). We previously granted a certificate of probable cause. We now affirm.

Procedural Background

West's conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals, West v. State, 720 S.W.2d 511 (Tex.Crim.App.1986) (en banc), and the United States Supreme Court denied certiorari. West v. Texas, 481 U.S. 1072, 107 S.Ct. 2470, 95 L.Ed.2d 878 (1987). West, represented by new counsel, filed state habeas proceedings. The state trial court, the same judge who had presided at West's 1983 trial, on August 25, 1987, entered findings and conclusions, based on the record and affidavits of West's trial and direct appeal counsel, and recommended that the Court of Criminal Appeals deny all relief. The latter court on August 31, 1987, denied relief in a written order not stating reasons. West, through the same counsel who represented him in the state habeas proceedings, instituted the instant section 2254 proceedings in the district court below. Several months after West's counsel filed his amended petition, 1

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the state filed its answer and motion for summary judgment. West never replied to the motion and some ten weeks after it was filed the magistrate judge issued a memorandum opinion recommending that the state's motion be granted. After being granted several extensions, West filed an unverified "response to magistrate's memorandum and recommendation." 2 On review of the record, the magistrate judge's memorandum, and West's response, the district court entered an order accepting the magistrate judge's memorandum and recommendation, granting the state's motion for summary judgment, and dismissing the petition. West filed a timely notice of appeal.

Factual Background

The state's evidence showed that the victim, Deanna Klaus, lived alone in room 312 at the Memorial Park Motel in Houston, Texas, and worked as a waitress at the motel's restaurant.

Shortly after midnight on August 24, 1982, Vickie Stolz and two other residents of the motel were sitting in the motel's breezeway and heard a commotion emanating from motel room 312. A fourth companion shortly joined these three. A few minutes later, West was observed exiting room 312; he walked within four to six feet of Stolz and her companions, then turned and walked up a flight of the motel's stairs; the blue jeans he was wearing appeared to be soaked with blood. 3 Stolz and her companions then looked into room 312, which was in total disarray, and observed the nude body of Deanna Klaus, bloody and bound, lying face down on the bed.

Police officers arrived on the scene shortly thereafter, and one of the witnesses directed them to room 447 in the motel on the floor above room 312. Room 447 was occupied by West and a male transvestite companion, Gonzalo Tagle. The police asked both to step outside, and West was arrested when he did so. Tagle advised that the room was his and gave permission to search. The police observed a pair of wet, bloodstained blue jeans lying over a chair in the room. Stolz and her companions identified West as the individual they had observed leaving room 312.

Police officers promptly examined room 312. Detective Lott testified that based on his examination of the door to room 312, in his opinion it had been forced open. Officer Richardson testified that the door "was separated from the seams as if broken into." There was other similar testimony. There was police officer testimony that room 312 "was ransacked," there was "stuff scattered around the floor" and "drawers have been pulled out, dumped on the floor." Other testimony concerning the room was that there were "items on the floor" and it appeared "like somebody went through everything."

The pathologist testified that Klaus' wrists and ankles were bound by cloth so tightly as to leave visible pressure grooves on her; her mouth and nose were gagged with a towel tied by a cloth binding that likewise left pressure grooves. Her head was covered by a bloody sheet tied by a leather belt wrapped twice around her neck. There was a stab wound in her neck and two on her left arm. A six-inch piece of wood protruded two inches from her back, being stuck four inches into her body. There was evidence of strangulation by hand, reflected by her broken hyoid bone. Death resulted from asphyxiation, caused by the belt and cloth ligatures around the neck and mouth as well as by manual strangulation, in combination with

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the wound from the stick penetrating four inches into her chest cavity.

West, following repeated warnings as called for by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), gave a full written confession to the police in which he admitted killing Klaus. He said he forced his way into her room, pushing the door open with his shoulder. He disrobed Klaus, tied her up, and gagged her and put a belt around her neck. He thereafter beat her in the face with a "club" he found in the room; it broke, and he stabbed her with it. He hit her with a bottle, which broke, and then "gigged her in the neck with it." Then, "[w]hen I got up she was still making noises, she was still alive. I knew that since I went that far that I couldn't leave her like that. I grabbed the sheet and wrapped it around her neck and I strangled her. I pulled it until she didn't move anymore." West further stated that he took a gold necklace that he saw in her room, and when he returned to room 447 put the necklace in Tagle's purse. West said that when he left room 312 "the door was hard to open because of when I had broke in" and "[t]here were two dudes and a girl outside when I came out and went to my room" and "I had blood all over me."

At the punishment stage of the trial, previously redacted portions of West's confession were admitted in evidence. This portion of the confession reflected that West and Tagle--a "drag queen" female impersonator who used the first name Roxanne--had begun living together in Houston in April 1982. Roxanne had a job, and Roxanne and West "also made money by hustling tricks in the Montrose area of town." One evening in May they went to the Montrose area "to make money any way we could." Roxanne attracted a "trick"--whom West stated later turned out to be one William Longfellow whom West understood worked as a security guard--and West asked Roxanne "if she wanted me to roll him and she said yes." West and Roxanne devised a plan whereby Longfellow would give West, as well as Roxanne, a ride home in Longfellow's car and "I would do the rolling." In the Montrose area, in front of the Chicken Coop Bar there, Longfellow, at the requests of Roxanne and West, agreed to give West a ride to his apartment, and all three got in the front seat of Longfellow's red Mercury Zephyr and drove to the general vicinity of the apartments on Sage Street where Roxanne and West lived. Then Longfellow, at Roxanne's request, stopped and let Roxanne out to urinate, and Longfellow followed her. West followed both of them. As they walked back to the car, West was behind Longfellow. West's confession goes on to state:

"... I pulled out my knife and grabbed him by his hair and lifted him up off the ground and I stabbed him in the jugler vain [sic]. I stabbed him about six or seven times. As I was stabbing him I asked him where his money was. He told me that his money was in the trunk of his car. After he told me where his money was at I hit his head up against a tree and left him for dead. He wasn't moving and he wasn't saying anything and there was a lot of blood and I had blood all over my hands. I thought he was dead.

As soon as I grabbed the guy and started stabbing him, Roxanne ran from there and ran to the apartments. The apartments are about two blocks away. After I stabbed him I got into his car and drove back to the apartments on Sage. I parked the car behind the WINDSOR PLAZA SHOPPING CENTER. I opened the trunk of the car and I found the guys money in a brown paper bag. I got the money and went to the apartment....

I thought I had killed the guy so the next morning we checked the newspapers to see if there was a story about him being found. We never seen nothing about the man being found. After a few weeks we just forgot about it. A couple of weeks later ROXANNE called me from the jail and she told me that she had been busted for prostitution. I went to the police station and found out that there was a hold on her for the stabbing. That's when I found out that the man wasn't dead....

Roxanne was in jail for about two weeks and she tried to...

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