Clark v. Collins, 92-2142
| Decision Date | 27 February 1992 |
| Docket Number | No. 92-2142,92-2142 |
| Citation | 956 F.2d 68 |
| Parties | David Michael CLARK, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mandy Welch, Anthony S. Haughton, Texas Resource Center, Houston, Tex., for petitioner-appellant.
Dan Morales, Atty. Gen., Robert S. Walt, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before JOLLY, DAVIS, and SMITH, Circuit Judges.
David Michael Clark is scheduled to be executed by the State of Texas at 12:01 a.m. on February 28, 1992. For the second time this year, Clark is asking this court for a stay of execution and a certificate of probable cause to appeal from the district court's denial of his second petition for a writ of habeas corpus. We deny both, for the reasons set forth below.
Clark was indicted for capital murder for the murders of Beverly Benninghoff and Charles Gears on February 18, 1987. Clark initially entered a plea of not guilty; however, on June 24, 1987, the third day of trial, midway through the presentation of the prosecution's case-in-chief, Clark changed his plea to guilty. He was convicted on June 25 and sentenced to death on June 26, 1987. He filed a motion for new trial on July 17, 1987, which was denied on August 25, 1987. On March 6, 1991, the Texas Court of Criminal Appeals affirmed his conviction on direct appeal. On April 22, 1991, Clark filed a motion for rehearing with the Texas Court of Criminal Appeals, which was subsequently denied. On August 13, 1991, he filed a petition for writ of certiorari to the United States Supreme Court.
On October 4, 1991, while the petition for writ of certiorari was pending, the state trial court held a hearing to set an execution date. At that time, an attorney from the Texas Resource Center informed the trial judge that Clark did not have counsel to represent him in seeking post-conviction relief, and requested that the execution date be set no earlier than 90 days from the date of the hearing, "to give us an adequate amount of time to obtain counsel and for counsel to prepare and present Mr. Clark's case to this court." Statement of Facts, Hearing to Set Execution Date, p. 5 (Dist. Ct. of Brazos County, TX, 272nd Judicial Dist., Oct. 4, 1991). The trial court obliged that request, and scheduled the execution for January 17, 1992, 103 days after the hearing.
On November 18, 1991, the Supreme Court denied Clark's petition for a writ of certiorari. It was not until December 27, 1991, that the Texas Resource Center produced an attorney to represent Clark in post-conviction proceedings. On January 3, 1992, Clark filed a motion to modify the execution date, requesting a 90-day delay to allow his counsel properly to research and brief the issues. A hearing on the motion to modify was held on January 7, 1992. At that hearing, Anthony Haughton, a staff attorney with the Texas Resource Center, stated that "it will take the better part of 30 days in many cases in order to be able to put a state habeas petition together." On January 11, 1992, the state district court notified counsel by telephone that the motion to modify the execution date was denied, and an order to that effect was entered on January 13, 1992.
At 4:00 p.m. on January 15, 1992, Clark filed his first 82-page post-conviction application for writ of habeas corpus in state court, raising eleven claims. He also filed a motion for stay of execution.
The following events took place on January 16 and the early morning hours of January 17, 1992: (1) the state court denied the motion for stay of execution, and the trial court entered findings of fact and conclusions of law, recommending denial of habeas corpus relief; (2) the Texas Court of Criminal Appeals adopted the trial court's findings of fact and conclusions of law, and denied post-conviction relief; (3) Clark filed his first 85-page federal petition for habeas relief, asserting eleven claims, and also filed a motion for stay of execution; (4) the district court entered an order denying the petition for writ of habeas corpus, motion for stay of execution, and certificate of probable cause to appeal; (5) on appeal, this court also denied relief; and (6) Justice Scalia granted a stay of execution during the early morning hours of January 17, and the Supreme Court vacated the stay later that same day.
The state trial court then scheduled Clark's execution for 12:01 a.m. on February 28, 1992.
At approximately 5:00 p.m. on February 25, 1992, Clark filed his second motion for stay of execution and his second, 58-page post-conviction application for writ of habeas corpus in the state court, presenting four claims. Early the next morning, Clark filed a motion to recuse the state trial judge. The judge refused to recuse himself, and the recusal motion was referred to another judge who denied the motion after a three-hour-long hearing on February 26.
This afternoon, Clark filed a supplemental application for writ of habeas corpus and stay of execution in the Texas Court of Criminal Appeals, alleging that he was denied due process when the trial judge refused to recuse himself. The state trial court entered findings of fact and conclusions of law and recommended that relief be denied. The Texas Court of Criminal Appeals adopted the trial court's findings of fact and conclusions of law and denied Clark's requests for habeas relief and a for a stay. Clark then filed his second federal petition for habeas relief, along with a motion for stay of execution and request for an evidentiary hearing. The district court denied the relief requested and denied Clark's motion for a certificate of probable cause to appeal.
Mere hours before his scheduled execution, Clark is now before this court again, asking for a stay of execution and a certificate of probable cause to appeal, which we deny.
As we stated in our prior opinion in this case, we consider four factors in determining whether to grant a stay of execution:
(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." Buxton v. Collins, 925 F.2d 816, 819 (5th Cir.1991) (quoting 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)).
A certificate of probable cause to appeal will be granted if the applicant can make "a substantial showing of the denial of a federal right." Buxton, 925 F.2d at 819.
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.' " 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. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1982)). "[A]ny doubts whether CPC should be issued are to be resolved in favor of the petitioner." Id.
Although Clark raised five grounds for relief in his second and supplemental state petitions, in his second federal petition he has abandoned all claims for relief except one. Even with respect to that issue, it is not raised in this proceeding for the first time. Ordinarily McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) would preclude consideration of the issue; but Clark puts a new twist on it: he contends that his second petition satisfies the exception to the abuse of the writ doctrine, because he has made a colorable showing of factual innocence, i.e., ineligibility for the death penalty. See Sawyer v. Whitley, 945 F.2d 812, 816 (5th Cir.1991), cert. granted, --- U.S. ----, 112 S.Ct. 434, 116 L.Ed.2d 453 (1991)....
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