Barefoot v. Estelle, No. 82-6080

CourtUnited States Supreme Court
Writing for the CourtWHITE
Citation463 U.S. 880,77 L.Ed.2d 1090,103 S.Ct. 3383
Docket NumberNo. 82-6080
Decision Date06 July 1983
PartiesThomas A. BAREFOOT, Petitioner, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections

463 U.S. 880
103 S.Ct. 3383
77 L.Ed.2d 1090
Thomas A. BAREFOOT, Petitioner,

v.

W.J. ESTELLE, Jr., Director, Texas Department of Corrections.

No. 82-6080.
Argued April 26, 1983.
Decided July 6, 1983.
Syllabus

Petitioner was convicted of capital murder in a Texas state court after a jury trial. A separate sentencing hearing was then held before the same jury to determine whether the death penalty should be imposed. One of the questions submitted to the jury, as required by a Texas statute, was whether there was a probability that the petitioner would commit further criminal acts of violence and would constitute a continuing threat to society. In addition to introducing other evidence, the State called two psychiatrists, who, in response to hypothetical questions, testified that there was such a probability. The jury answered the question, as well as another question as to whether the killing had been deliberate, in the affirmative, thus requiring imposition of the death penalty. On appeal, the Texas Court of Criminal Appeals rejected petitioner's contention that such use of psychiatric testimony at the sentencing hearing was unconstitutional, and affirmed the conviction and sentence. Ultimately, after this Court had denied certiorari and the Texas Court of Criminal Appeals had denied a habeas corpus application, petitioner filed a petition for habeas corpus in Federal District Court raising the same claims with respect to the use of psychiatric testimony. The District Court rejected these claims and denied the writ, but issued a certificate of probable cause pursuant to 28 U.S.C. § 2253, which provides that an appeal may not be taken to a court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a state court "unless the Justice or Judge who rendered the order or a Circuit Justice or Judge issues a certificate of probable cause." The Texas Court of Criminal Appeals again denied a habeas corpus application, as well as denying a stay of execution. Shortly thereafter, the Court of Appeals also denied a stay of execution pending appeal of the District Court's judgment. This Court, treating an application for stay of execution as a petition for a writ of certiorari before judgment, granted certiorari.

Held:

1. The Court of Appeals did not err in refusing to stay petitioner's death sentence. Pp. 887-896.

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(a) Although it did not formally affirm the District Court's judgment, there is no question that the Court of Appeals ruled on the merits of the appeal in the course of denying a stay and that petitioner had ample opportunity to address the merits, and such practice was within the bounds of this Court's prior decisions, such as Garrison v. Patterson, 391 U.S. 464, 88 S.Ct. 1687, 20 L.Ed.2d 744. The parties, as directed, filed briefs and presented oral arguments, thus making it clear that whether a stay would be granted depended on the probability of success on the merits. While it would have been advisable for the Court of Appeals to affirm expressly the District Court's judgment, as well as to deny the stay, the court's failure to do so does not conflict with Garrison and related cases. Although the Court of Appeals moved swiftly to deny the stay, this does not mean that its treatment of the merits was cursory or inadequate. On the contrary, the court's resolution of the primary issue on appeal, the admission of psychiatric testimony on dangerousness, reflects careful consideration. To remand to the Court of Appeals for verification that the District Court's judgment was affirmed, as petitioner urges, would be an unwarranted exaltation of form over substance. Pp. 888-892.

(b) The following procedural guidelines for handling applications for stays of execution on habeas corpus appeals pursuant to a certificate of probable cause are suggested: (1) A certificate of probable cause requires more than a showing of the absence of frivolity of the appeal. The petitioner must make a substantial showing of the denial of a federal right, the severity of the penalty in itself not sufficing to warrant automatic issuance of a certificate. (2) When a certificate of probable cause is issued, the petitioner must be afforded an opportunity to address the merits, and the court of appeals must decide the merits. (3) A court of appeals may adopt expedited procedures in resolving the merits of habeas corpus appeals, notwithstanding the issuance of a certificate of probable cause, but local rules should be promulgated stating the manner in which such cases will be handled and informing counsel that the merits of the appeal may be decided on the motion for a stay. (4) Where there are second or successive federal habeas corpus petitions, it is proper for the district court to expedite consideration of the petition, even where it cannot be concluded that the petition should be dismissed under 28 U.S.C. § 2254 Rule 9(b) because it fails to allege new or different grounds for relief. (5) Stays of execution are not automatic pending the filing and consideration of a petition for certiorari from this Court to a court of appeals which has denied a writ of habeas corpus. Applications for stays must contain the information and materials necessary to make a careful assessment of the merits and so reliably determine

Page 882

whether a plenary review and a stay are warranted. A stay of execution should first be sought from the court of appeals. Pp. 892-896.

2. The District Court did not err on the merits in denying petitioner's habeas corpus petition. Pp. 896-905.

(a) There is no merit to petitioner's argument that psychiatrists, individually and as a group, are incompetent to predict with an acceptable degree of reliability that a particular criminal will commit other crimes in the future and so represent a danger to the community. To accept such arg ment would call into question other contexts in which prediction of future behavior are constantly made. Moreover, under the generally applicable rules of evidence covering the admission and weight of unprivileged evidence, psychiatric testimony predicting dangerousness may be countered not only as erroneous in a particular case but as generally so unreliable that it should be ignored. Nor, despite the view of the American Psychiatric Association supporting petitioner's view, is there any convincing evidence that such testimony is almost entirely unreliable and that the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings. Pp. 896-903.

(b) Psychiatric testimony need not be based on personal examination of the defendant but may properly be given in response to hypothetical questions. Expert testimony, whether in the form of an opinion based on hypothetical questions or otherwise, is commonly admitted as evidence where it might help the factfinder do its job. Although this case involves the death penalty, there is no constitutional barrier to applying the ordinary rules of evidence governing the use of expert testimony. Pp.903-904.

(c) The Texas courts, the District Court, and the Court of Appeals properly rejected petitioner's argument that even if the use of hypothetical questions in predicting dangerousness is acceptable as a general rule, the use made of them in his case violated his right to due process of law. Pp. 904-905

Affirmed.

Jack Greenberg, New York City, for NAACP Legal Defense and Educational Fund, Inc. as amicus curiae, by special leave of Court.

William E. Gray, Jr., Houston, Tex., for petitioner.

Page 883

Douglas M. Becker, Austin, Tex., for respondent.

Justice WHITE delivered the opinion of the Court.

We have two questions before us in this case: whether the District Court erred on the merits in rejecting the petition for habeas corpus filed by petitioner, and whether the Court of Appeals for the Fifth Circuit correctly denied a stay of execution of the death penalty pending appeal of the District Court's judgment.

I

On November 14, 1978, petitioner was convicted of the capital murder of a police officer in Bell County, Texas. A separate sentencing hearing before the same jury was then held to determine whether the death penalty should be imposed. Under Tex.Code Crim.Proc.Ann. § 37.071,1 two special questions were to be submitted to the

Page 884

jury: whether the conduct causing death was "committed deliberately and with reasonable expectation that the death of the deceased or another would result"; and whether "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." The State introduced into evidence petitioner's prior convictions and his reputation for lawlessness. The State also called two psychiatrists, John Holbrook and James Grigson, who, in response to hypothetical questions, testified that petitioner would probably commit further acts of violence and represent a continuing threat to society. The jury answered both of the questions put to them in the affirmative, a result which required the imposition of the death penalty.

On appeal to the Texas Court of Criminal Appeals, petitioner urged, among other submissions, that the use of psychiatrists at the punishment hearing to make predictions

Page 885

about petitioner's future conduct was unconstitutional because psychiatrists, individually and as a class, are not competent to predict future dangerousness. Hence, their predictions are so likely to produce erroneous sentences that their use violated the Eighth and Fourteenth Amendments. It was also urged, in any event, that permitting answers to hypothetical questions by psychiatrists who had not personally examined petitioner was constitutional error. The court rejected all of these contentions and affirmed the conviction and sentence on March 12, 1980, 596 S.W.2d 875; rehearing was denied on...

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8981 practice notes
  • U.S. v. Friend, No. Crim.A. 3:99CR201-01.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • April 19, 2000
    ...S.Ct. at 2991 (citations omitted); see also Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lockett, 438 U.S. at 608, 98 S.Ct. at 2966-67 (Burger, J., joined by Stewart, Powell, Stevens, JJ.......
  • Moore v. Quarterman, Civil No. SA-03-CA-405-RF.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • December 20, 2007
    ...U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but, r......
  • Keenan v. Bagley, CASE NO. 1:01 CV 2139
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • April 24, 2012
    ...155473 (2000). In that case, the Court held that Section 2253 was a codification of the standard it set forth in Barefoot v. Estelle, 463 U.S. 880 (1983), but for the substitution of the word "constitutional" for "federal" in the statute. Id. at 483. Thus, the Court determined,[t]o obtain a......
  • McWhorter v. Dunn, Case No. 4:13-CV-02150-RDP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • January 22, 2019
    ...are not forums in which to relitigate state trials." Smith v. Newsome, 876 F.2d 1461, 1463 (11th Cir. 1989) (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)).Exhaustion of state remedies requires that the state prisoner "fairly presen[t]8 federal claims to the state courts in order to......
  • Request a trial to view additional results
8944 cases
  • U.S. v. Friend, No. Crim.A. 3:99CR201-01.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • April 19, 2000
    ...S.Ct. at 2991 (citations omitted); see also Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lockett, 438 U.S. at 608, 98 S.Ct. at 2966-67 (Burger, J., joined by Stewart, Powell, Stevens, JJ.......
  • Moore v. Quarterman, Civil No. SA-03-CA-405-RF.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • December 20, 2007
    ...U.S. at 336, 123 S.Ct. at 1039; Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make such a showing, the petitioner need not show he will prevail on the merits but, r......
  • Keenan v. Bagley, CASE NO. 1:01 CV 2139
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • April 24, 2012
    ...155473 (2000). In that case, the Court held that Section 2253 was a codification of the standard it set forth in Barefoot v. Estelle, 463 U.S. 880 (1983), but for the substitution of the word "constitutional" for "federal" in the statute. Id. at 483. Thus, the Court determined,[t]o obtain a......
  • McWhorter v. Dunn, Case No. 4:13-CV-02150-RDP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • January 22, 2019
    ...are not forums in which to relitigate state trials." Smith v. Newsome, 876 F.2d 1461, 1463 (11th Cir. 1989) (quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)).Exhaustion of state remedies requires that the state prisoner "fairly presen[t]8 federal claims to the state courts in order to......
  • Request a trial to view additional results
7 books & journal articles
  • Institutionalizing the Culture of Control
    • United States
    • International Criminal Justice Review Nbr. 24-4, December 2014
    • December 1, 2014
    ...v. Alabama, 472 U.S. 372 (1985)Banks v. Dretke, 540 U.S. 668 (2004)Barclay v. Florida, 463 U.S. 939 (1983)Barefoot v. Estelle, 463 U.S. 880 (1983)Baze v. Rees, 553 U.S. 35 (2008)Beard v. Banks, 542 U.S. 406 (2004)Beard v. Kindler, 558 U.S. ___ (2009)Beck v. Alabama, 447 U.S. 625 (1980)Beech......
  • THE PRECEDENTIAL EFFECTS OF THE SUPREME COURT'S EMERGENCY STAYS.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 44 Nbr. 3, June 2021
    • June 22, 2021
    ...Centers Council, Inc., 505 U.S. 1234, 1234 (1992) (Blackmun, J., dissenting from the grant of stay). (61.) See, e.g., Barefoot v. Estelle, 463 U.S. 880, 885 (1983) (White, J., opinion in (62.) Holtzman v. Schlesinger, 414 U.S. 1304, 1308-09 (1973) (Marshall, J., opinion in chambers); see al......
  • A Field Study of a Comprehensive Violence Risk Assessment Battery
    • United States
    • Criminal Justice and Behavior Nbr. 42-9, September 2015
    • September 1, 2015
    ...in an incarcerated offender population. Criminal Justice and Behavior, 35, 741-754. doi:10.1177/0093854808316275 Barefoot v. Estelle, 463 U.S. 880 (1983).Baxstrom v. Herold, 383 U.S. 107 (1966).Boccaccini, M. T., Turner, D. B., & Murrie, D. C. (2008). Do some evaluators report consistently ......
  • Future Dangerousness Revisited
    • United States
    • Criminal Justice Policy Review Nbr. 14-3, September 2003
    • September 1, 2003
    ...v. Oklahoma, 470 U.S. 68 (1985).Arriaga, P. (2000). Managing death row. Crime and Justice International,16, 5-28.Barefoot v. Estelle, 463 U.S. 880 (1983).Bottoms, A. E. (1999). Interpersonal violence and social order in prisons. In M. Tonry & J.Petersilia (Eds.), Prisons: Crime and justice,......
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