Brogdon v. Butler
| Decision Date | 29 July 1987 |
| Docket Number | No. 87-3553,87-3553 |
| Citation | 824 F.2d 338 |
| Parties | John BROGDON, Petitioner-Appellant, v. Robert Hilton BUTLER, Warden, Louisiana State Penitentiary at Angola, Louisiana, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Silas Wasserstrom, Washington, D.C., David B. Girard, Judith G. Menadue, New Orleans, La., for petitioner-appellant.
Gregory C. Champagne, Asst. Dist. Atty., Hahnville, La., William J. Guste, Atty. Gen., New Orleans, La., for respondent-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before CLARK, Chief Judge, POLITZ and WILLIAMS, Circuit Judges.
John E. Brogdon is under sentence of death and scheduled to be executed on July 30, 1987, by the State of Louisiana. He petitions for the right to appeal in forma pauperis, for a certificate of probable cause to appeal, and for a stay of execution. Brogdon has presented two previous petitions for habeas corpus relief in the state courts, and this is his second petition for relief under 28 U.S.C. Sec. 2254. We grant the petition to appeal in forma pauperis. We deny the petition for a certificate of probable cause to appeal and for a stay of execution and dismiss the appeal.
John Brogdon was convicted of first degree murder on February 4, 1982. On that same day, the jury recommended that Brogdon receive the death sentence. The trial court then sentenced Brogdon to die. On appeal, the Louisiana Supreme Court affirmed the first degree murder conviction. Because of an erroneous charge given to the jury by the trial court in the sentencing instructions, Brogdon's death sentence was vacated, and the case was remanded for resentencing. State v. Brogdon, 426 So.2d 158 (La.1983).
On remand, a joint motion for a change of venue was granted, and the second sentencing hearing was held in Franklin, Louisiana on June 13-17, 1983. The second jury recommended that Brogdon receive the death sentence, and the court entered the sentence. Under Louisiana law, the jury's "recommendation" of a death sentence requires the court to assess that penalty. La.Code Crim.Proc.Ann. art. 905.8 (West 1984). On appeal, the Louisiana Supreme Court affirmed the death sentence. State v. Brogdon, 457 So.2d 616 (La.1984). Brogdon filed a petition for certiorari with the United States Supreme Court, and the petition was denied on May 13, 1985. Brogdon v. Louisiana, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862, reh'g denied, 473 U.S. 921, 105 S.Ct. 3547, 87 L.Ed.2d 670 (1985).
Brogdon filed his first petition for habeas corpus relief in July, 1985, in Louisiana district court. That court and the Louisiana Supreme Court both denied relief. Brogdon then petitioned for a writ of habeas corpus under 28 U.S.C. Sec. 2254 in the United States District Court, which also denied his petition. Brogdon appealed to this Court. We granted him a stay of execution on July 31, 1985, pending a consideration of his many claims. After a careful review of his claims and a critical intervening decision by the United States Supreme Court, we denied Brogdon a certificate of probable cause on May 30, 1986, and simultaneously vacated our stay of execution. 790 F.2d 1164 (5th Cir.1986). Brogdon's motion for a rehearing en banc was denied on June 27, 1986. 793 F.2d 1287 (5th Cir.1986) (en banc).
On September 9, 1986, Brogdon filed a petition for writ of certiorari with the United States Supreme Court. A stay of execution was granted on September 11, 1986, pending consideration of his petition for certiorari. On May 4, 1987, the stay was vacated when the Supreme Court denied the petition. Brogdon v. Blackburn, --- U.S. ----, 107 S.Ct. 1985, 95 L.Ed.2d 824 (1987).
On June 18, 1987, Louisiana issued a new warrant of execution setting July 30 as the execution date for Brogdon. On July 24, thirty-seven days after the warrant was issued and only six days before his scheduled execution date, Brogdon's counsel filed Brogdon's second petition for a writ of habeas corpus in the Louisiana state district court. The delay raises the spectre that counsel undertook to place such time constraints upon the courts that another stay of execution could be obtained, not on the merits of Brogdon's claims, but simply because of the pressure of time. Nevertheless, the state district court denied relief on July 27, and the Louisiana Supreme Court denied relief on July 28. Brogdon then filed this petition for writ of habeas corpus and for a third stay of execution in the United States District Court, which denied the petition on July 28. Brogdon now appeals to this Court. We have spared no effort in reviewing the record, as we became familiar with the case and the record prior to the filing of this petition pursuant to our established procedure. Local Rule 8 and Fifth Circuit Internal Operating Procedure following that rule.
The issue before us is whether the petitioner has made a sufficient showing to justify the granting of a certificate of probable cause to appeal and a stay of execution so that the appeal can be considered on the merits.
The standard for granting a certificate of probable cause (CPC) under Fed.R.App.P. 22(b) is whether there has been a substantial showing of a denial of a federal right. Stewart v. Beto, 454 F.2d 268, 279 n. 2 (5th Cir.1971).
The standard for reviewing an application for a stay of execution has been set out by this court many times:
In general, a court, in deciding whether to issue a stay, must consider: (1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest.
Celestine v. Butler, slip opinion 5609, 823 F.2d 74 (5th Cir. 1987), citing O'Bryan v. McKaskle, 729 F.2d 991, 993 (5th Cir.1984); O'Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir.1982), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir.1982).
In a capital case, "while the movant need not always show the probability of success on the merits, he must present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities (i.e. the other three factors) weighs heavily in favor of granting the stay." O'Bryan v. McKaskle, 729 F.2d at 993, citing Ruiz v. Estelle, 666 F.2d at 856.
In deciding whether the requirements have been met for the granting of a CPC and a stay, the merits of the habeas corpus claims obviously must be considered to the extent necessary to determine whether they are substantial.
The United States District Court held a hearing and concluded that the present application constituted an abuse of the writ, Rule 9(b), 28 U.S.C. foll. Sec. 2254. Nevertheless, the district court considered on the merits and rejected all of petitioner's claims that had not been earlier adjudicated. We agree with the district court, but alternatively consider and reject all seven of petitioner's claims. We summarize them briefly, and consider them in turn:
1. Petitioner's death sentence violates the Constitution because one of the aggravating circumstances fully overlaps with a circumstance the State proved to establish his guilt of first degree murder.
2. Execution of mentally retarded petitioner would constitute cruel and unusual punishment.
3. The admission of photographs at the sentencing hearing violated petitioner's right to a fair sentencing hearing.
4. The denial of petitioner's right to an evidentiary hearing on the issue of the State's suppression of favorable evidence violated due process.
5. The trial court's ruling that testimony concerning the sentence received by petitioner's co-indictee was not relevant mitigating evidence violated the Eighth Amendment.
6. Capital punishment is excessive.
7. Electrocution is a cruel and unusual means of punishment.
Petitioner's first claim raises the same issue raised in Lowenfield v. Phelps, 817 F.2d 285 (5th Cir.), cert. granted, --- U.S. ----, 107 S.Ct. 3227, 97 L.Ed.2d 734 (1987). That issue is whether a statutory aggravating circumstance can be used to justify the sentence of death if that same circumstance is an element of the underlying crime for which the death sentence is meted out. In this case, the aggravating circumstance is aggravated rape.
We need not address the Lowenfield issue in this case, however, because the jury found two aggravating circumstances at the sentencing phase of this case. One was aggravated rape; the other was that "the offense was committed in an especially heinous, atrocious, or cruel manner." State v. Brogdon, 457 So.2d at 622. Even if the former circumstance is found invalid, the latter is sufficient to support imposition of the death penalty. The Supreme Court has specifically held that when, by statute, only one aggravating factor is required to support the capital penalty and two or more are found, the death sentence is not made invalid by the invalidity of only one of the aggravating factors. Zant v. Stephens, 462 U.S. 862, 885-89, 103 S.Ct. 2733, 2747-49, 77 L.Ed.2d 235 (1983). See also Williams v. Maggio, 679 F.2d 381 (5th Cir.1982) (en banc), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983). (Judge Politz and Judge Williams continue to adhere to the reasoning of the dissenting opinion authored by Judge Randall in Maggio, but acknowledge that this panel is bound by both Zant and the Maggio majority.)
The grant of the petition for certiorari in Lowenfield can be of no aid to petitioner because a valid aggravating circumstance would still stand even if the application of the aggravated rape circumstance were found invalid. Celestine v. Butler, --- U.S. ----, 108 S.Ct. 6, 96 L.Ed.2d ---- (1987)...
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