Barnard v. Collins
| Decision Date | 31 January 1994 |
| Docket Number | No. 94-60067,94-60067 |
| 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 |
Robert L. McGlasson, Decatur, GA, for petitioner-appellant.
Dan Morales, Atty. Gen. and John Jacks, Asst. Atty. Gen., Austin, TX, for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before KING, JOLLY, and SMITH, Circuit Judges.
ON APPLICATION FOR CERTIFICATE OF PROBABLE CAUSE AND MOTION
FOR STAY OF EXECUTION
Harold Amos Barnard, Jr., a death-row inmate in the Texas Department of Criminal Justice (TDCJ), Institutional Division, filed his second petition for federal habeas corpus relief, pursuant to 28 U.S.C. Sec. 2254, in the United States District Court for the Southern District of Texas on January 27, 1994. Barnard is scheduled to be executed after midnight on February 2, 1994. Barnard requested that the district court stay his execution, hold an evidentiary hearing on the issue of his competency, and issue a writ of habeas corpus vacating his death sentence. Barnard also requested that the district court appoint counsel for him pursuant to 21 U.S.C. Sec. 848(q)(4)(B). On January 28, 1994, the district court denied Barnard all relief and a certificate of probable cause (CPC). Barnard then filed a notice of appeal to this court, along with an application for a CPC, a motion to stay his execution, and a renewed motion for appointment of counsel. Although the district court denied relief on the ground that Barnard had abused the writ, we do not reach this question in our consideration of his entitlement to a CPC and a stay of execution, but instead hold that Barnard has not made a substantial showing of the denial of a federal right. Thus, we deny his application for a CPC and his motion to stay his execution. We reverse the district court's denial of counsel, and in the light of Barnard's exigent circumstances, we grant his motion to appoint counsel.
A jury convicted Barnard of capital murder on April 1, 1981, for the killing of sixteen-year-old Tuan Nguyen during a robbery of a convenience store in Galveston, Texas, on June 6, 1980. 1 After a punishment hearing, the jury affirmatively answered the three special issues submitted pursuant to Texas law, thereby requiring that Barnard be sentenced to death.
On April 8, 1987, the Texas Court of Criminal Appeals affirmed Barnard's conviction, and on July 17, 1987, the state trial court pronounced Barnard's death sentence and set his execution for September 23, 1987. On February 29, 1988, the Supreme Court denied Barnard's petition for writ of certiorari. See 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).
The Texas Court of Criminal Appeals denied Barnard's first petition for state habeas corpus relief on January 6, 1989, and Barnard's execution was rescheduled for March 14, 1989. On February 21, 1989, Barnard filed a petition for federal habeas corpus relief and an application for stay of execution in the United States District Court for the Southern District of Texas. 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. After Barnard filed a notice of appeal, the district court granted a CPC and entered a stay of execution on February 7, 1990.
On appeal, Barnard contended 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 under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); (2) the state trial 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 had received ineffective assistance of counsel. Finding no error, a panel of this court affirmed the district court's denial of habeas relief and vacated the stay of execution. Barnard v. Collins, 958 F.2d 634, 643 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993). Rehearing was denied on May 22, 1992. Barnard v. Collins, 964 F.2d 1145 (5th Cir.1992). The state trial court rescheduled Barnard's execution for March 16, 1993.
The Supreme Court denied certiorari review of Barnard's petition for federal habeas relief on January 11, 1993. Barnard v. Collins, --- U.S. ----, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993). On March 8, 1993, the Supreme Court also denied Barnard's application for a stay of execution and petition for rehearing, in which he reargued his Penry claim in light of the Court's decision in Graham v. Collins, --- U.S. ----, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993).
On March 10, 1993--six days before his then current execution date and nearly five years after the execution date which was set after Barnard's conviction became final--Barnard filed his second petition for state habeas relief, in which he asserted that he was incompetent to be executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), and that the Texas special issues did not allow the jury to reflect adequately the mitigation value of his proffered evidence. He also argued that Article 8.04(b) of the Texas Penal Code, which the judge read to the jury as an instruction at the sentencing phase of the trial, was unconstitutional both on its face and as applied. On March 15, 1993, the state court issued its findings and conclusions, recommending that habeas relief be denied. Later that same day, the Texas Court of Criminal Appeals granted Barnard a stay of execution.
On May 11, 1993, the Texas Court of Criminal Appeals ordered the state trial court to hold an evidentiary hearing on Barnard's claim that he was incompetent to be executed. That hearing was held on July 22, 1993. The trial court then issued its findings and conclusions and recommended that Barnard's petition for habeas relief be denied on September 29, 1993. On November 8, 1993, the Texas Court of Criminal Appeals adopted the trial court's findings and conclusions and denied Barnard's petition for habeas relief. Barnard's execution date was then rescheduled for February 2, 1994.
On January 27, 1994, Barnard filed his second habeas petition in federal district court. He requested that the district court stay his execution, hold an evidentiary hearing to determine whether Barnard was competent to be executed, and issue a writ of habeas corpus vacating his death sentence. The attorney who had filed Barnard's second federal habeas petition also requested that the district court appoint him to represent Barnard pursuant to 21 U.S.C. Sec. 848(q)(4)(B). On January 28, 1994, the district court denied Barnard all relief, denied Barnard a CPC, and denied his attorney's motion for appointment of counsel. Barnard then filed a notice of appeal with this court, along with an application for a CPC, a motion to stay his execution, and a renewed motion for appointment of counsel.
In response to Barnard's petition, the State moved to dismiss the petition as an abuse of the writ, pursuant to Rule 9(b), Rules Governing Section 2254 Cases. Under Rule 9(b), a second or successive petition in which new grounds for relief are alleged may be dismissed if the petitioner's "reasonable and diligent investigation" would have resulted in his presenting these grounds in a previous habeas petition. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). Once abuse of the writ has been pleaded by the State, raised by the district court sua sponte or raised as required in Hawkins v. Lynaugh, 862 F.2d 487, 489 (5th Cir.), stay granted, 488 U.S. 989, 109 S.Ct. 569, 102 L.Ed.2d 593 (1988), vacated and remanded on other grounds, 494 U.S. 1013, 110 S.Ct. 1313, 108 L.Ed.2d 489 (1990), the petitioner must show by a preponderance of the evidence that he has not abused the writ or otherwise violated Rule 9(b). Andre v. Guste, 850 F.2d 259 (5th Cir.1988); Johnson v. McCotter, 803 F.2d 830, 832 (5th Cir.1986).
According to the district court, it was clear from the evidence put forth by Barnard that he could not meet this burden. The district court found that although there was some evidence that Barnard's condition had persistently worsened over the years, it was abundantly clear that the question of his competency to be executed was extant at the time of his first habeas petition because "Barnard's habeas counsel have known and asserted for years that Barnard's sanity is questionable." Thus, because the district court determined that Barnard failed to demonstrate good cause for his failure to raise the issue of his competency in his earlier writ, the court dismissed Barnard's petition on grounds that he had abused the writ.
We need not reach the question of whether Barnard abused the writ for purposes of his entitlement to habeas relief on the merits. Even if we assume arguendo that Barnard did not abuse the writ, we find that Barnard has not made a substantial showing of a denial of a federal right, and thus we deny his application for a CPC and his motion to stay his execution.
This court reviews an application for a CPC using the same standard as that...
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