Bird v. Collins
| Decision Date | 05 February 1991 |
| Docket Number | No. 90-2378,90-2378 |
| Citation | 924 F.2d 67 |
| Parties | Jerry Joe BIRD, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Douglas Tinker, Tinker, Tor & Brown, Corpus Christi, Tex. (court-appointed), for petitioner-appellant.
Andrea L. March, Robert S. Walt, Asst. Attys. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, HIGGINBOTHAM, and DAVIS, Circuit Judges.
Jerry Joe Bird appeals from the denial by a United States District Court of his petition for writ of habeas corpus. Bird was convicted of capital murder in October 1977, and sentenced to death by a Texas jury.
The Texas Court of Criminal Appeals affirmed Bird's conviction. Bird v. State, 692 S.W.2d 65 (Tex.Crim.App.1985). This conviction and sentence is his second for this offense. The first conviction was reversed by the Texas Court of Criminal Appeals. Bird v. State, 527 S.W.2d 891 (1975). After exhausting his state remedies, including applications for writ of habeas corpus, Bird filed a federal petition.
Bird's collateral attack of his state court conviction rested on five arguments. He argued that the exclusion of Spanish-surnamed individuals in the selection of a jury violated his equal protection and due process rights, that the decision of his direct appeal by the state court was unduly delayed, that the court erred by admitting testimony given at the first trial by an important witness assertedly unable to testify at the second trial, that the Texas death penalty scheme violates the eighth and fourteenth amendments, and finally that the trial court erred in not submitting the third of the three issues prescribed by the Texas Code of Criminal Procedure for the sentencing phase of capital cases. After full briefing and oral argument, we are persuaded that the denial of habeas corpus should be affirmed for essentially the reasons stated by the district court, with one exception.
The district court, sua sponte, raised and rejected a Penry claim never asserted by Bird. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Bird asks that we vacate this ruling, because it assertedly denies him the right to personally develop such a claim, and that we remand the case to the ...
To continue reading
Request your trial
-
Alexander v. Johnson
...that the district court should be able to grant relief sua sponte on an unexhausted claim if proper circumstances exist. In Bird v. Collins, 924 F.2d 67 (5th Cir.), cert. denied, 501 U.S. 1213, 111 S.Ct. 2819, 115 L.Ed.2d 989 (1991), the district court, sua sponte, raised and then rejected ......
-
Donahue v. Cain
...161 F.3d 802 (5th Cir. 1998); Gochicoa v. Johnson, 118 F.3d 440 (5th Cir. 1997), cert. denied, 522 U.S. 1121 (1998). 7. Bird v. Collins, 924 F.2d 67 (5th Cir. 1991). See also Alexander v. Johnson, 163 F.3d 906 (5th Cir. 1998). Although the court in Alexander reversed the grant of habeas rel......