Andrews v. Collins

• Decision Date: 13 May 1994
• Docket Number: No. 93-4151,93-4151
• Citation: 21 F.3d 612
• Parties: Maurice ANDREWS, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 612

21 F.3d 612

Maurice ANDREWS, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 93-4151.

United States Court of Appeals Fifth Circuit.

May 13, 1994.

David C. Holmes, Thomson & Holmes, L.L.P., Thomas H. Wilson, Vinson & Elkins, Margaret C. Ling, Houston, TX, for appellant.

Stephani A. Stelmach, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for appellee.

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

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Maurice Andrews was convicted by a jury of capital murder and sentenced to death. His conviction and sentence were affirmed on direct appeal. After his petition for habeas corpus relief in the Texas Court of Criminal Appeals was denied, Andrews filed a petition for habeas corpus relief in federal district court, pursuant to 28 U.S.C. Sec. 2254 (1988). The district court denied the petition. Andrews now appeals the district court's decision, presenting over twenty claims of error. We affirm.

I

A

On April 8, 1982, two men robbed Granado's Jewelry Store in Beaumont, Texas. ¹ During the robbery, Joe Granado, the store owner, was shot once in the head by a small caliber pistol and once with a .38 caliber pistol; Arturo Melindez, a store employee, also was shot in the head and killed. Luisa Morales, an employee of the business located next to the jewelry store, testified that, after hearing gunshots, she saw two black men leaving the shop "real fast." ² The only significant evidence police officers found at the scene was a black cap decorated with a white Playboy bunny emblem.

Daisy May White, who lived at co-defendant Malcolm Davis' house, testified that Andrews came to the residence on the morning the murders occurred. Andrews wore a "dark brown" shirt and a "black [cap] with a white Playboy bunny in the front." Andrews and Davis, who wore a dark red baseball cap, left the house approximately two hours before Granado and Melindez were killed. Andrews, Davis, and Elliott Johnson returned to the house about forty-five minutes after the robbery occurred. ³ While at Davis' residence, Andrews retrieved a bag, a towel, and some clothes from Davis' car, which was parked in the garage. When Andrews reentered the house, White observed that he had a "medium-sized" pistol--which she had seen Andrews carry on previous occasions--tucked into his pants. White also observed "lots of jewelry" wrapped up in the towel that Andrews had retrieved from the car. Later, Davis gave his wife the pistol he had been carrying, which was smaller than Andrews' gun, and told her to clean it. Davis also told her that "we had to shoot those guys or they would have killed us." Davis' wife subsequently placed the pistol Andrews had been carrying, several envelopes, and a red baseball cap in a storehouse located in their backyard.

Gloria Mae Thomas testified that she accompanied Andrews--who was wearing a black Playboy bunny cap--Davis, and a third man to the residence of Charles Chapman in Houston two days before the robbery-murders occurred. On that trip, Davis inquired whether Chapman wanted to purchase or knew where he could fence "about $20,000 worth of jewelry." When Chapman requested to see the jewelry, Davis replied that he would let Chapman "see it later on." Thomas also testified that Andrews often talked about committing robberies and told her that "he wouldn't leave nobody around to talk about it" if he ever "pulled a big robbery." Chapman's testimony supported that given by Thomas. Additionally, Chapman stated that Andrews carried a .38 caliber pistol while in Houston.

After Andrews and Davis were arrested, ⁴ police officers obtained a warrant to search Davis' residence. During the search, they recovered a .38 caliber pistol, an envelope with "Granado Jewelry" on it, the bill of a red baseball cap that had been burned, and one ring. During a search of Andrews' residence, again pursuant to a warrant, officers found a large amount of jewelry hidden in the refrigerator. Tests demonstrated that the .38 caliber pistol recovered by police fired the shots that killed Granado and Melindez. Lynn Baldwin, Granado's stepson, identified the seized envelope as being of the same type used by Granado to secure jewelry left at the store by customers. He further identified one of the rings found in Andrews' residence as being Granado's personal ring. Blain Coleman identified a second ring found at Andrews' residence as being a ring that he left at Granado's store for repairs prior to the robbery. Patricia Stine and Rolanda Russell testified that several items of jewelry seized at Andrews' residence "matched up" with items that their companies had delivered to Granado's Jewelry Store. Many of the items taken from the store, however, were never recovered. A jury found Andrews guilty of the capital murder of Joe Granado.

B

In accord with the capital sentencing statute then in effect, ⁵ Andrews's jury was instructed at the punishment phase of his trial that it was to answer three "special issues":

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a reasonable probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

Tex.Code Crim.Proc.Ann. art. 37.071(b) (Vernon 1981). Because the jury unanimously answered each question in the affirmative, the trial court sentenced Andrews to death. See id. art. 37.071(e). The Texas Court of Criminal Appeals affirmed Andrews' conviction and sentence. Andrews, 744 S.W.2d 40.

In November 1988, Andrews, represented by counsel, sought postconviction relief in the Texas state courts. After an evidentiary hearing regarding six of Andrews' thirty-seven claims, ⁶ the state habeas court, which also had been the trial court, entered findings of fact and conclusions of law recommending that relief be denied. The Court of Criminal Appeals, finding the trial court's findings and conclusions to be supported by the record, subsequently denied relief. Andrews then petitioned for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. Sec. 2254, raising twenty-seven claims of error. The district court denied relief and granted Andrews' petition for a certificate of probable cause to appeal, 810 F.Supp. 759. Andrews now raises a plethora of claims on appeal.

II

Andrews first levels a general challenge to the state court's findings of fact, arguing that four of the exceptions to the presumption of correctness enumerated in Sec. 2254(d) are applicable. ⁷ Andrews' challenges can be grouped into two categories: those based on the inadequacy of the procedures or other aspects of the state hearing (exceptions under Secs. 2254(d)(2), (3) and (6)) and those based on the merits of the state court's findings (exceptions under Sec. 2254(d)(1)).

A

The first category of challenges requires us to determine whether certain alleged procedural irregularities at the hearing rendered the presumption inapplicable. E.g., Black v. Collins, 962 F.2d 394, 400 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992). Andrews specifically contends that the state court "refused to allow [him] to conduct any discovery and also refused to provide [him] with the means to present all of the evidence that supported [his] claims." Andrews, however, fails to cite any authority supporting his contentions. ⁸

Texas law leaves discovery decisions to the sound discretion of the habeas court. See Tex.Code Crim.Pro.Ann. art. 11.07(2)(d) (West Supp.1994) (stating that "the court may order affidavits, depositions, interrogatories, and hearings, as well as using personal recollection" to resolve "controverted, previously unresolved facts") (emphasis added). In federal court, "[d]iscovery decisions in habeas proceedings ... [also] are left entirely to the sound discretion of the district court." Duff-Smith v. Collins, 973 F.2d 1175, 1180 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1958, 123 L.Ed.2d 661 (1993); see also 28 U.S.C. Sec. 2254, Rule 6 (governing the availability of discovery in federal habeas proceedings); Willie v. Maggio, 737 F.2d 1372, 1395 (5th Cir.) (holding that the district court did not abuse its discretion in denying motion for discovery), cert. denied, 469 U.S. 1002, 105 S.Ct. 415, 83 L.Ed.2d 342 (1984). Moreover, Andrews wholly fails to explain how the state court "refused to provide [him] with the means to present all of the evidence." E.g., Smith v. Estelle, 711 F.2d 677 (5th Cir.1983) (noting that a habeas applicant need not be given the opportunity to present live testimony), cert. denied, 466 U.S. 906, 104 S.Ct. 1685, 80 L.Ed.2d 159 (1984). Finally, in reviewing the record, we note that the state court allowed Andrews to present evidence and witnesses, to fully cross-examine witnesses called by the state, and, after the hearing's conclusion, to submit affidavits from two persons who did not appear at the hearing. Accordingly, we conclude that Andrews received a full and fair hearing.

B

The second challenge raised by Andrews requires us to determine whether the state court actually resolved the factual issues presented by Andrews' petition. Andrews contends that although he filed an amended petition "conform[ing] his allegations to the evidence presented at the hearing," the state habeas court's factual findings tracked the allegations raised in his original state petition. Andrews neglects to mention, however, that the state court refused to consider Andrews' ...