962 F.2d 394 (5th Cir. 1992), 92-2375, Black v. Collins

Docket Nº:92-2375.
Citation:962 F.2d 394
Party Name:Robert V. BLACK, Jr., Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Case Date:May 21, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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962 F.2d 394 (5th Cir. 1992)

Robert V. BLACK, Jr., Petitioner-Appellant,


James A. COLLINS, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 92-2375.

United States Court of Appeals, Fifth Circuit

May 21, 1992

Certiorari Denied June 15, 1992.

See 112 S.Ct. 2983.

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[Copyrighted Material Omitted]

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Raoul D. Schonemann, Virginia C. Lindsay, Texas Resource Center, Austin, Tex., Mandy Welch, Houston, Tex., for petitioner-appellant.

Dan Morales, Atty. Gen., Stephanie A. Stelmach, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before POLITZ, Chief Judge, KING, and EMILIO M. GARZA, Circuit Judges.

KING, Circuit Judge:

Robert V. Black, Jr., was convicted in a Texas court of hiring a man to kill his wife, Sandra Black, and sentenced to death. After exhausting his state remedies, Black filed a petition for a writ of habeas corpus in federal court. The district court denied relief on all claims, and refused to grant a certificate of probable cause to appeal. Black now applies to this court for a certificate of probable cause and moves for a stay of execution. We deny the application and the motion.


In the fall of 1984, Black became acquainted with John Wayne Hearn when Black answered an advertisement Hearn had placed in Soldier of Fortune magazine. Hearn, who was involved in a group that was gathering weapons to send to the Nicaraguan contras, eventually became interested in purchasing Black's gun collection. Hearn and Black met in Texas in early 1985 to discuss the purchase. In the course of their meeting, Black told Hearn that he (Black) would have all the money he needed if he did not have a wife. Black described a plot he had concocted to kill his wife in which he and a friend would force a speeding car containing Sandra Black into a bridge embankment. The gun deal fell through, however, and Hearn returned to Florida.

Shortly thereafter, Black called Hearn to tell him that the friend was no longer willing to help in the murder plot. Black asked Hearn if he would assist him, and Hearn agreed. Hearn returned to Bryan, Texas on February 20, 1985, and Black promised to pay $10,000 plus expenses for Hearn's troubles. Hearn and Black eventually agreed that Hearn would shoot Sandra with her own pistol in Black's house. The next day, Hearn and Black ransacked the house to give the appearance of a burglary. Black and his son, Gary, ran errands while Hearn waited for Sandra to

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return home. When Sandra returned, Hearn shot her twice in the head, killing her.

The evidence at trial showed that Black obtained a $100,000 insurance policy on Sandra's life eight days before the murder, thereby doubling the coverage on her life. The evidence also showed that Black had contemplated killing Sandra for several years prior to her murder, and had attempted to enlist the assistance of several people in carrying out his schemes. In 1982 or 1983, Black gave Mark Huber a "downpayment" on his offer of $5,000 for Huber's assistance. Black suggested that Huber help in shooting Sandra or running over her with a truck. In the fall of 1984, Black wanted to get rid of Sandra so that he could carry on a relationship with his first cousin, Teresa Hetherington. To this end, he had discussions with David Huber, Mark's brother, in which he (Black) suggested that David assist in burning Sandra to death. Black also suggested that David steal a truck and run over Sandra while she was riding her motorcycle, hit her on the head with a baseball bat and dump her over a bridge, or fake a robbery or rape and shoot Sandra with one of Black's guns. Black also discussed killing Sandra with Gordon Matheson. Matheson testified that Black hated Sandra and was obsessed with Teresa, and that Black had asked him to assist in killing Sandra by driving a car into which Black would crawl after guiding Sandra's car into a bridge embankment. Black offered both David Huber and Matheson monetary rewards for their help. Other testimony established that Black had discussed killing his girlfriend's husband.

After trial in February 1986, the jury found Black guilty of capital murder. Two special issues, "deliberateness" and "future dangerousness," were submitted for the punishment phase under the former version of the Texas Code of Criminal Procedure, article 37.071(b). 1 Black offered a great deal of evidence at the punishment phase. Witnesses testified that Black had not been a mean or vicious child and that he had won numerous honors in scouting as a young man, including the award of Eagle Scout. After studying chemical engineering at Texas A & M University for two years, Black dropped out to join the Marines. He received a Blues Award for being the distinguished Marine in his platoon, and he flew on over 100 combat missions in Vietnam. After his discharge from the service, Black returned to Bryan, where he worked sporadically. There was testimony from his coworkers at an electrical company that he had been a good electrician and a good worker. There was also testimony that he had been involved in the Boy Scouts with his son and that he had been helpful to a friend of his son who suffered from physical and emotional problems.

The State's evidence at the punishment phase consisted of the testimony of Mark Huber described above, the testimony of David Huber regarding Black's mention of wanting to kill Sandra and his girlfriend's husband, and the testimony of two other witnesses who stated that Black had expressed a desire to kill Sandra or his girlfriend's husband. Sandra's mother, Marjorie Eimann, testified that Black had thrown Sandra through a screen door during an argument approximately ten years earlier, and she also testified that Black had chased her (Eimann) from Black's home. In addition, a deputy sheriff from the Brazos County Jail testified that when Black was being held pending trial, a map of the jail

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and surrounding grounds and some wire were found during a shakedown. Grady Deckard, another inmate at the jail, testified that Black had told him of an escape plot. The jury answered both special issues in the affirmative, and Black was sentenced to death.

The Texas Court of Criminal Appeals affirmed the conviction, Black v. State, 816 S.W.2d 350 (Tex.Crim.App.1991), and Black did not seek certiorari review in the U.S. Supreme Court. One day before his scheduled execution, Black applied for a stay of execution and a writ of habeas corpus in the state trial court and Texas Court of Criminal Appeals. The Court of Criminal Appeals granted a stay. After Black amended his petition, the trial court held an evidentiary hearing on March 18-19, 1992. On April 7, the court entered findings of fact and conclusions of law and recommended that relief be denied. The court reset Black's execution for May 22. Black filed objections with the Court of Criminal Appeals and sought a stay, but the Court of Criminal Appeals adopted the trial court's findings and conclusions and denied relief. Ex parte Black, No. 22,919-02 (Tex.Crim.App. May 12, 1992).

Black then filed a petition for a writ of habeas corpus in federal court. He raised the following grounds for relief, all of which had been exhausted in state court:

  1. His trial attorneys rendered constitutionally ineffective assistance by failing to investigate and offer for purposes of mitigation evidence that Black suffered from Post-Traumatic Stress Disorder at the time of the offense.

  2. The Texas capital sentencing statute as applied in this case violated the Eighth Amendment because it precluded the jury from giving full consideration to his mitigating evidence of good acts and positive character traits.

  3. His Sixth Amendment right to counsel was violated when evidence of a conversation he had out of the presence of counsel with a jailhouse informant, Grady Deckard, was admitted at trial.

  4. The prosecution failed to reveal that Grady Deckard testified for the State in return for a promise of leniency, in violation of the Fourteenth Amendment.

  5. Grady Deckard's testimony was false, thereby violating Black's rights under the Fourteenth Amendment.

  6. The Texas capital sentencing statute as applied in this case violated his Sixth Amendment right to effective assistance of counsel because it prevented his counsel from presenting relevant and probative mitigating evidence.

  7. The admission of evidence of unadjudicated offenses at the penalty phase violated his rights under the Eighth and Fourteenth Amendments.

  8. The State presented inflammatory evidence and argument concerning the character and worth of the victim, in violation of the Fourteenth Amendment.

  9. The trial court's failure to grant a motion to change venue violated his rights under the Fourteenth Amendment.

Black also moved for an evidentiary hearing on claims 1, 3 and 4, asserting that the factual findings underlying those claims that had been made in the state habeas proceeding were not entitled to the presumption of correctness under 28 U.S.C. § 2254(d). The district court denied all relief, denied the motion for an evidentiary hearing, and denied a certificate of probable cause to appeal. Black v. Collins, No. H-92-1507, (S.D.Tex. May 19, 1992) [hereinafter Dist.Ct.Op.]. Black has filed with this court an application for a certificate of probable cause to appeal and a motion for a stay of execution scheduled for May 22, 1992.


A. Certificate of Probable Cause to Appeal

We have no jurisdiction to hear an appeal in this case unless we first grant a certificate of probable cause. Fed.R.App.P. 22(b). To obtain a CPC, Black must "make a 'substantial showing of the denial of [a] federal right.' " Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983)...

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