Drew v. Collins

Decision Date18 June 1992
Docket NumberNo. 91-2744,91-2744
Citation964 F.2d 411
PartiesRobert Nelson DREW, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

William M. Kunstler and Ronald L. Kuby, New York City, for petitioner-appellant.

Stephani A.S. Stelmach, Robert S. Walt, Asst. Atty. Gen., and Dan Morales, Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before KING, JOLLY, and HIGGINBOTHAM, Circuit Judges.

KING, Circuit Judge:

Robert Nelson Drew appeals the district court's denial of his petition for a writ of habeas corpus on several grounds. Finding no error, we affirm the district court's denial of the writ.

I. BACKGROUND

The recitation of facts is taken in large part from the opinion of the Texas Court of Criminal Appeals. Drew v. State, 743 S.W.2d 207 (Tex.Crim.App.1987).

In February 1983, seventeen-year-old Jeffrey Leon Mays, who was not getting along with his parents, decided to run away from home. He decided to leave his home in Praco, Alabama with his high school friend, Bee Landrum. Both young men had experienced family conflict because of their difficulties with alcohol and drugs. They left Alabama in Landrum's car with eight dollars, some food, and Landrum's buck knife.

Mays and Landrum picked up a number of hitchhikers to obtain gas money. At the suggestion of one, John Sly, they spent the night at the Salvation Army in Lafayette, Louisiana. There they met Drew, who was in the company of a man named Frank. Mays and Landrum agreed to give Drew and Frank a ride to Franklin, Louisiana, thirty miles east of Lafayette, in exchange for money and gas. When they arrived in Franklin, Frank bought pizza and beer for everyone, filled Landrum's car with gas, and gave Drew sixty-five dollars. Mays and Landrum agreed to take Drew to Houston in exchange for more gas money. Mays, Landrum, and Drew left Frank in Franklin and traveled back west toward Lafayette.

While passing through Lafayette, they saw John Sly hitchhiking and picked him up again. Shortly after leaving Lafayette, the group picked up another hitchhiker, Ernest Puralewski. Everyone was drinking beer except Mays, who was driving. At least one marijuana cigarette was passed around, which everyone smoked except Mays. Drew and Puralewski engaged in conversation. Puralewski stated that he was on the run and that he had been in prison with Charles Manson in California.

Mays, apparently unnerved by this conversation, told the group he wanted to stop and make a telephone call to his parents. After appearing to make the call, he returned to the car and stated that his father was gravely ill and that he had to return to Alabama. Drew was upset that Mays was not going to take him to Houston as planned. He believed that Mays had lied about his father in an attempt to abandon the hitchhikers. He punched Mays in the face and held a knife to Landrum's throat. Drew threatened Landrum and Sly that he ought to cut their throats. Drew then wrapped his arm around Mays' neck and, holding a knife to his neck, ordered him to stop the car.

Puralewski, armed with the buck knife he had borrowed from Landrum earlier, pulled Sly out of the car and robbed him. Drew prevented Landrum from leaving the car, telling him "if you try anything you are dead." Drew ordered Landrum to the front seat and moved Mays to the back seat. He began to punch Mays in the face while calling him a punk, accusing him of lying about the telephone call to his parents, and threatening Mays that he was going to die. Mays did not resist this attack.

According to Landrum, Puralewski told Drew to take Mays' watch and wallet if he planned to kill him, so that Mays would not have any identification. Drew took these items. Mays muttered something to the effect that Drew "would not get away with this." Both Drew and Puralewski decided to kill Mays. They ordered Landrum to pull the car to the side of an access road on I-10, where they pulled Mays out of the right side of the car. Watching through the rear-view mirror, Landrum saw Drew pull Mays' head back and make a slashing motion across his throat. Puralewski stabbed Mays at the same time. The two men rolled Mays' body into a ditch and ordered Landrum to continue the drive to Houston. After leaving Puralewski at a bar in Houston, Drew and Landrum were stopped by the police at 3:30 A.M. for speeding. After an investigation, Drew was charged with capital murder.

On December 3, 1983, Drew was convicted of capital murder and received a death sentence. On March 7, 1984, Puralewski pleaded guilty to one count of capital murder and was sentenced to a sixty-year term of imprisonment. On March 24, 1984, Drew moved for a new trial based on newly discovered evidence. This motion was based in part on an affidavit prepared by Puralewski, who declared that he acted alone in killing Mays. The state trial court denied this motion on April 13, 1984.

On May 9, 1984, Drew moved the Texas Court of Criminal Appeals for leave to file for a writ of mandamus or for abatement and requested a hearing. The Court of Criminal Appeals denied this motion on May 14, 1984. On September 30, 1987, the Court of Criminal Appeals affirmed Drew's conviction and sentence. Drew v. State, 743 S.W.2d 207 (Tex.Crim.App.1987).

Drew filed a state habeas petition on April 28, 1988. The state trial court recommended denial of the writ. The Court of Criminal Appeals adopted the trial court's findings of fact and conclusions of law and denied the writ. Ex parte Drew, No. 13,998-02 (Tex.Crim.App. June 14, 1988). On the same day the Court of Criminal Appeals denied his petition, Drew filed a motion for stay of execution and a habeas petition in federal district court.

The district court granted Drew a stay of execution on June 14, 1988. It denied Drew habeas relief on February 20, 1991. Drew appealed this decision and requested the issuance of a Certificate of Probable Cause (CPC). The district court granted CPC on July 31, 1991.

II. DISCUSSION

Drew argues that he should receive habeas relief because (1) the jury's consideration of the possibility of parole violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the Constitution; (2) the wrongful dismissal of two prospective jurors violated his Sixth and Fourteenth Amendment rights; (3) prosecutorial misconduct during trial violated his Fourteenth Amendment rights; (4) the application of the Texas capital sentencing statute in his case unconstitutionally prevented the jury from giving full mitigating effect to the evidence of his troubled childhood, his drinking problem, and the fact that he had consumed drugs and alcohol at the time of the crime; (5) Texas' thirty-day limit for new trial motions precluded the consideration of newly discovered evidence showing Drew's innocence in violation of his Eighth and Fourteenth Amendment rights; and (6) he received ineffective assistance of counsel. We address each of these claims separately below.

A. Jury's Consideration of the Possibility of Parole

During the jury's deliberations at the punishment phase of trial, Drew contends, jurors speculated that a life sentence would probably result in parole for Drew and agreed that Drew should never be paroled. Drew submitted an affidavit to the state habeas court in support of this claim. The affidavit, executed by Peter Fleury, a private investigator assisting Drew's attorney, related the content of a telephone conversation Fleury had with Alvin Eisenberg, the foreman of the jury. Fleury averred that Eisenberg told him that the jury felt that Drew should never be paroled and agreed that they did not want Drew "roaming our streets."

Drew argues that his sentence violated his Sixth, Eighth, and Fourteenth Amendment rights because jurors discussed whether Drew would be eligible for parole should they sentence him to life imprisonment. Drew asserts that had the jurors not made this impermissible consideration, they would have returned a sentence of life imprisonment rather than death.

We directly considered whether a Texas jury improperly considered parole law during capital sentencing deliberations in De La Rosa v. Texas, 743 F.2d 299 (5th Cir.1984), cert. denied, 470 U.S. 1065, 105 S.Ct. 1781, 84 L.Ed.2d 840 (1985). We indicated that while the mention of parole law amounts to misconduct, "[o]nly jury misconduct that deprives the defendant of a fair and impartial trial warrants granting of a new trial." Id. at 306, cited in Monroe v. Collins, 951 F.2d 49, 52 (5th Cir.1992). In Monroe, we relied on California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), to hold that,

[b]ecause it is not repugnant to the federal constitution for a state to accurately instruct the jury on parole procedures, it follows that a state trial juror's accurate comments about parole law do not offend the federal constitutional rights of the defendant.

Id. at 53. Furthermore,

we have distinguished between jury panels tainted by outside influence, such as publicity or direct appeals from third parties, and panels on which one or more of the jurors themselves have violated an instruction of the court. In the former case, "a presumption of prejudice arises when the outside influence is brought to the attention of the trial court, and it is incumbent upon the Government to rebut that presumption at a hearing."

United States v. Webster, 750 F.2d 307, 338 (5th Cir.1984) (citations omitted) (quoting United States v. Chiantese, 582 F.2d 974, 978 (5th Cir.1978), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979)), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985). In the latter case, however, no such presumption arises, and the defendant must demonstrate that jury misconduct prejudiced his constitutional right to a fair trial. 1 See ...

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