Barnard v. Collins
| Decision Date | 03 April 1992 |
| Docket Number | No. 90-2124,90-2124 |
| Citation | 958 F.2d 634 |
| Parties | Harold Amos BARNARD, Jr., Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Alan D. Albright, Akin, Gump, Strauss, Hauer & Feld, Austin, Tex., for petitioner-appellant.
Margaret Portman Griffey, Asst. Atty. Gen., Robert S. Walt, Asst. Atty. Gen., Enforcement Div. and Jim Mattox, Atty. Gen., Houston, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before KING, JOLLY and SMITH, Circuit Judges.
Harold Amos Barnard, Jr. appeals the district court's dismissal of his petition for a writ of habeas corpus. He argues that the district court erred in rejecting his contention that the Texas capital sentencing statute as applied in his case unconstitutionally prevented the jury from fully considering and giving effect to all of the mitigating evidence he presented during the conviction and sentencing phases of his trial. Finding no error, we affirm the district court's denial of habeas relief and vacate the stay of execution.
On June 6, 1980, Barnard killed sixteen-year-old Tuan Nguyen during the robbery of a convenience store in Galveston, Texas. 1 A jury convicted Barnard of capital murder on April 1, 1981. After a punishment hearing, the jury affirmatively answered the three special issues submitted pursuant to Texas law, and on April 6, 1981, the court imposed a death sentence.
The Texas Court of Criminal Appeals affirmed Barnard's conviction on April 8, 1987. Barnard v. State, 730 S.W.2d 703 (Tex.Crim.App.1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988). Barnard filed a petition for a writ of habeas corpus in the state trial court on October 31, 1988. On November 22, 1988, the trial court entered its findings of fact and conclusions of law and recommended denial of the writ. The Court of Criminal Appeals found the trial court's findings and conclusions to be supported by the record and denied the writ on January 6, 1989.
The trial court rescheduled Barnard's execution for March 14, 1989. On February 21, 1989, Barnard filed a petition for habeas corpus relief and an application for stay of execution in United States district court. The district court stayed the execution pending its consideration of Barnard's petition.
On December 12, 1989, the district court entered a final judgment dismissing the petition for a writ of habeas corpus and lifting the stay of execution. Barnard timely filed a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e), which the district court denied. After Barnard filed a notice of appeal, the district court granted a certificate of probable cause and entered a stay of execution on February 7, 1990. This appeal followed.
On appeal, Barnard contends that the district court erred in rejecting his claims that (1) the Texas death sentencing statute prevented the jury in his case from considering and giving effect to his mitigating evidence in violation of the Sixth and Eighth Amendments to the United States Constitution; (2) the court's instruction on temporary insanity caused by intoxication prevented the jury from giving any mitigating consideration to this evidence unless Barnard proved that he was so intoxicated that he was insane at the time of the offense; (3) evidence of his good character, including evidence of his carpentry skills, work history, and familial responsibility and support, was not adequately treated within the special issues; and (4) Barnard received ineffective assistance of counsel. We consider each of these claims below.
In considering a federal habeas corpus petition presented by a petitioner in state custody, federal courts must accord a presumption of correctness to any state court factual findings. See 28 U.S.C. § 2254(d). We review the district court's findings of fact for clear error, but decide any issues of law de novo. Humphrey v. Lynaugh, 861 F.2d 875, 876 (5th Cir.1988), cert. denied, 490 U.S. 1024, 109 S.Ct. 1755, 104 L.Ed.2d 191 (1989).
Barnard first contends that the Texas capital sentencing statute, as applied in his case, violated the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution by failing to provide a vehicle by which Barnard's jury could properly consider and give effect to the substantial mitigating evidence he presented at trial. Barnard argues that the Texas capital sentencing statute 2 unconstitutionally limited the jury's consideration of two types of mitigating evidence that he presented at trial: (1) his head injury, evidence of permanent characteristics and disabilities stemming from his troubled childhood, and his drug and alcohol abuse; and (2) evidence of his good character, including evidence of his carpentry skills, work history, and familial responsibility and support. Barnard maintains that, under the narrow focus of the special issues, no means existed by which the jury could give meaningful expression to this evidence and vote for life as mandated by the Supreme Court in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
The district court refused to review the merits of Barnard's contention that the Texas death sentencing statute was unconstitutional as applied 3 in his case, concluding that Barnard had procedurally defaulted this claim. In making this ruling, the district court observed that both the trial court and the Court of Criminal Appeals found on state habeas review that Barnard was barred under state law from complaining of the trial court's failure to give additional jury instructions on mitigating evidence because he failed to request such a special instruction. The district court determined that the state habeas court unambiguously relied on the state procedural default doctrine in its dismissal, and that Barnard demonstrated neither good cause for his failure to comply with state court procedures nor actual prejudice resulting from the alleged constitutional violation.
Over two years have elapsed since the district court rested its decision on the procedural default doctrine. Since then, the Texas Court of Criminal Appeals has clarified the state's position on whether a habeas petitioner has defaulted on a Penry claim. Selvage v. Collins, 816 S.W.2d 390 (Tex.Crim.App.1991), explained that a Penry claim is preserved even if the petitioner failed to request an instruction on mitigating evidence or object to the instructions given at trial. Id. at 392. However, a petitioner cannot base a Penry claim on mitigating evidence that could have been, but was not, proffered at trial. May v. Collins, 904 F.2d 228, 232 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991); DeLuna v. Lynaugh, 890 F.2d 720, 722 (5th Cir.1989); see also Ex parte Goodman, 816 S.W.2d 383, 386 n. 6 (Tex.Crim.App.1991) (). With these constraints in mind, we examine whether Barnard's challenge to the application of the Texas sentencing statute in his case warrants relief.
Although the Supreme Court has upheld the constitutionality of the Texas capital sentencing scheme, see Jurek v. Texas, 428 U.S. 262, 272, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976) (opinion of Stewart, Powell & Stevens, JJ.), it has found that under certain circumstances, the statutory special issues must be augmented by jury instructions to preserve the constitutionality of the statute's application. In Penry, the Supreme Court held that a Texas jury could not give effect to mitigating evidence of mental retardation and an abused childhood through the special issues absent instructions informing the jury that it could consider and give effect to this evidence by refusing to impose the death penalty. 492 U.S. at 328, 109 S.Ct. at 2951. The Court ordered resentencing in Penry's case because without such an instruction, "the jury was not provided with a vehicle for expressing its 'reasoned moral response' " to his mitigating evidence in its sentencing decision. Id.
In Graham v. Collins, 950 F.2d 1009 (5th Cir.1992) (en banc), petition for cert. filed Mar. 9, 1992 (No. 91-7580), this court recently construed Penry to indicate that special jury instructions are required only when the "major mitigating thrust of the evidence is beyond the scope of all the special issues." Id. at 1027. We determined that Graham's evidence of his youth as a mitigating factor found adequate expression through the second special issue. Graham reasoned that because youth is a transitory condition,
whatever is mitigating about youth tends to lend support to a "no" answer to the second special issue, and its tendency to do so is essentially proportional to the degree to which the jury concludes such factors were influential in the defendant's criminal conduct. The greater the role such attributes of youth are found to have played in the defendant's criminal conduct, the stronger the inference that, as his youth passes, he will no longer be a danger to society.
Id. at 1031. The majority distinguished evidence of transitory conditions, such as youth, from evidence of "uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own," such as mental retardation, organic brain damage and an abused childhood. Id. at 1029. We turn now to Barnard's contention that the mitigating evidence he presented at trial differs materially from the type of evidence found unproblematic in Graham and that, as a consequence, the lack of special...
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