Buxton v. Collins

• Citation: 925 F.2d 816
• Decision Date: 25 February 1991
• Docket Number: No. 91-2172,91-2172
• Parties: Lawrence Lee BUXTON, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 816

925 F.2d 816

Lawrence Lee BUXTON, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 91-2172.

United States Court of Appeals, Fifth Circuit.

Feb. 25, 1991.

Stanley G. Schneider, Schneider & McKinney, Houston, Tex., Robert L. McGlasson, Texas Resource Center, Austin, Tex., for petitioner-appellant.

Robert S. Walt, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

On Application for a Certificate of Probable Cause and Stay of Execution.

Before KING, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

KING, Circuit Judge:

Lawrence Lee Buxton (Buxton), currently confined on death row in the Texas Department of Criminal Justice, Institutional Division, instituted his second federal habeas corpus petition in the United States District Court for the Southern District of Texas on February 22, 1991, pursuant to 28 U.S.C. Sec. 2254. He requested that the district court stay his execution, order an evidentiary hearing, and issue a writ of habeas corpus vacating his conviction for capital murder. He is scheduled for execution on February 26, 1991 after 12:01 a.m. On February 23, 1991, the district court denied Buxton all relief, and denied Buxton a certificate of probable cause for appeal (CPC). Buxton applies to this court for a certificate of probable cause for appeal and for a stay of execution. Because we find that there has been no substantial showing of the denial of a federal right, we deny his application for a certificate of probable cause. Furthermore, because Buxton demonstrates neither a substantial case on the merits, nor that the balance of the equities weighs in his favor, we deny his motion for a stay of execution.

I. FACTS AND PROCEDURAL HISTORY.

As they were returning home from Yom Kippur services on the evening of September 19, 1980, the Slotnik and Sternberg families stopped at a Safeway grocery store. Mrs. Sternberg, Joel Slotnik, and his five-year-old son Aaron entered the store. Sternberg testified that a man with a stocking mask over his face yelled "Hit the deck" as they entered. She observed three masked men, two of whom were brandishing guns.

One of the masked men forced Patricia Jackson, an assistant store manager, to give him the contents of her cash register at gun point. Mrs. Sternberg heard a robber tell Slotnik "You better get that kid down." The gunman took his aim off Patricia Jackson and aimed the gun at Slotnik, who was seated with his arm around his son. After taking aim with both hands for seven to eight seconds, the gunman shot Slotnik in the neck. Slotnik died from the wound four days later.

Two robbers exited the store, followed by the third robber. Sternberg subsequently identified the third robber as the killer. Several members of Slotnik's family were seated in a car parked in front of the store. Linda Slotnik, Joel's wife, testified that she heard a noise and looked toward the doors of the store. She observed two masked men walking rapidly, followed by a third man. The third man pulled off his mask as he left the store. Mrs. Slotnik identified Buxton in court as the man who pulled off his mask. Lee Slotnik, Joel's fourteen-year-old son, testified that he heard the sound of a shot coming from inside the store. He also identified Buxton as the third robber to leave the store.

John Larry Foster testified that he had a conversation with Buxton while he was in Houston sometime in late January or the first part of February, 1981. Buxton told him that "he went out and pulled a robbery" at a grocery store and "this guy seen him when he was coming out and he hollered for the guy to stop and he didn't so he shot." Buxton also told Foster that he used "38 slugs" because they were "hard to be traced." Buxton reportedly laughed about the incident.

A Texas state district court convicted Buxton of capital murder in the course of a robbery. After a separate punishment hearing, the jury affirmatively answered the two Texas special issues and sentenced Buxton to death. Buxton's conviction automatically was appealed to the Texas Court of Criminal Appeals, which affirmed the conviction. Buxton v. State, 699 S.W.2d 212 (Tex.Crim.App.1985), cert. denied, 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986). The United States Supreme Court denied Buxton's petition for a writ of certiorari. The trial court set Buxton's execution date for September 30, 1986. Buxton applied for a state writ of habeas corpus, which was denied.

Buxton immediately filed an application for a writ of habeas corpus in the United States District Court for the Southern District of Texas. He simultaneously filed an application for a stay of execution which was unopposed by the State and granted by the district court on September 29, 1986. Subsequently, the State moved for summary judgment on the habeas petition. The district court granted the State's summary judgment motion and vacated the stay, and denied Buxton's request for a certificate of probable cause to appeal. We granted a certificate of probable cause and heard Buxton's appeal. We denied relief on July 21, 1989. Buxton v. Lynaugh, 879 F.2d 140 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990). Buxton's petition for a writ of certiorari to the United States Supreme Court was denied.

On October 16, 1990, Buxton filed a second application for a state writ of habeas corpus. On January 17, 1991, the State district court set Buxton's execution date for February 26, 1991. On February 8, 1991, the trial court entered findings of fact and conclusions of law and recommended to the Texas Court of Criminal Appeals denial of Buxton's application for a writ of habeas corpus. On February 20, 1991, the Texas Court of Criminal Appeals denied relief based upon those findings, and Buxton promptly sought a stay of execution in the Court of Criminal Appeals.

On February 19, 1991, Buxton filed a supplemental habeas application in the trial court and the Court of Criminal Appeals. On February 21, 1991, the trial court entered findings of fact and conclusions of law on Buxton's supplemental application for writ of habeas corpus, and again recommended that relief be denied. On February 21, 1991, the Texas Court of Criminal Appeals denied Buxton's supplemental habeas application based on the trial court's findings of fact and conclusions of law.

On February 22, 1991, Buxton instituted his second federal habeas corpus petition in the United States District Court for the Southern District of Texas. He requested that the district court stay his execution, order an evidentiary hearing, and issue a writ of habeas corpus ordering that his conviction for capital murder and his death sentence be vacated. On February 23, 1991, the district court denied relief. On February 25, 1991, Buxton applied to this court for a certificate of probable cause for appeal (CPC) and for a stay of execution.

II. STANDARD OF REVIEW.

In deciding whether to issue a stay of execution, we are required to consider four factors:

(1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest.

Byrne v. Roemer, 847 F.2d 1130, 1133 (5th Cir.1988) (quoting Streetman v. Lynaugh, 835 F.2d 1521, 1524 (5th Cir.1988)). Although the " 'movant need not always show a probability of success on the merits, he must present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in the favor of granting the stay.' " Celestine v. Butler, 823 F.2d 74, 77 (5th Cir.), cert. denied, 483 U.S. 1036, 108 S.Ct. 6, 97 L.Ed.2d 796 (1987) (quoting O'Bryan v. McKaskle, 729 F.2d 991, 993 (5th Cir.1984)).

We will grant a certificate of probable cause to appeal pursuant to Fed.R.App.P. 22(b) if the applicant can make 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 (5th Cir.1953)). A "substantial showing" of a denial of a federal right means that "the issues are debatable among jurists of reason, that a court could resolve the issues [in a different manner]; or that the questions are 'adequate to deserve encouragement to proceed further.' " Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1982) (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980)). The severity of the penalty in a death penalty case "is a proper consideration in determining whether to issue a certificate of probable cause, but the severity of the penalty does not in itself suffice to warrant the automatic issuing of a certificate." Id. at 893, 103 S.Ct. at 3395.

The Supreme Court has reasoned that although "[i]t is natural that counsel for the condemned in a capital case should lay hold of every ground which, in their judgment, might tend to the advantage of their client, ... the administration of justice ought not to be interfered with on mere pretexts." Id. at 888, 103 S.Ct. at 3392. (quoting Lambert v. Barrett, 159 U.S. 660, 662, 16 S.Ct. 135, 135, 40 L.Ed. 296 (1895)). The Court acknowledged, however, that "a death sentence cannot ... be carried out by the State while substantial legal issues remain outstanding" and the courts should not "fail to give non-frivolous claims of constitutional error the attention they deserve." Id. at 888, 103 S.Ct. at 3392. Consistent with the Court's admonition, we have warned that any doubts whether CPC should be issued are to be resolved in favor of the petitioner. Jones v. Warden, La. State Penitentiary, 402 F.2d 776 (5th Cir.1968).

We...