Buntion v. Quarterman

• Decision Date: 11 April 2008
• Docket Number: No. 06-70024.,06-70024.
• Parties: Carl Wayne BUNTION, Petitioner-Appellee, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

524 F.3d 664

Carl Wayne BUNTION, Petitioner-Appellee, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.

No. 06-70024.

United States Court of Appeals, Fifth Circuit.

April 11, 2008.

Richelieu Edward Wheelan, R.E. Wheelan & Associates, Patrick F. McCann (argued), Law Offices of Patrick F. McCann, Houston, TX, for Buntion.

Thomas M. Jones (argued), Austin, TX, for Quarterman.

Appeal from the United States District Court for the Southern District of Texas.

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Carl Wayne Buntion was convicted of capital murder and sentenced to death in 1991. The district court granted Buntion conditional habeas relief on his claim of judicial bias. The State appeals the district court's grant of conditional habeas relief. Bound by the strictures of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), we VACATE the district court's grant of conditional habeas relief. Habeas relief is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Trial and Direct Appeal

At about 7:45 p.m. on June 27, 1990, Houston Police Officer James Irby was on motorcycle patrol when he stopped a car for a minor traffic violation. After parking his motorcycle, Irby approached the driver's side of the car and spoke briefly with the driver, who had already exited the vehicle. Irby and the driver, still conversing, walked toward the rear of the car. Irby then walked back to the driver's side of the car, looked in the car, and spoke briefly with Buntion, who was the only passenger. Irby then returned to the rear of the car, where he continued speaking with the driver. Buntion then exited the car from the passenger's side. Irby motioned to Buntion to get back in the car, but Buntion proceeded toward Irby. When he was about five feet from Irby, he raised a long-barrel revolver with both hands and fired a shot into Irby's forehead. Irby died almost instantly. The police arrested Buntion later that day.

On June 28, 1990, Buntion was indicted for the capital murder of a peace officer. Judge William Harmon of the 178th District Court for Harris County presided over the trial, appointing three local criminal defense attorneys, Phillip Scardino, Allen Tanner, and John Keirnan, to represent Buntion. Based on the "unprecedented" amount of publicity Buntion's trial was receiving, Judge Harmon granted a change of venue, moving the trial to Gillespie County.

Voir dire began in early November 1990, and was apparently a very slow process; by December 6, 1990, the parties had only selected eight jurors. During the voir dire proceedings, the defense at one point ran out of peremptory challenges. Judge Harmon then granted the defense fifty additional peremptory challenges, an action that the prosecution challenged with a bill of exceptions. The next day, Judge Harmon reversed himself, withdrawing the remaining additional challenges and granting the defense only four more. The defense objected to the change.

On December 12, 1990, based on Judge Harmon's comments, behavior, and rulings during voir dire, the defense filed its first recusal motion. Specifically, Buntion alleged that: Judge Harmon made an off-the-record statement in open court that he was "doing God's work to see that defendant Buntion gets executed;" Judge Harmon criticized the Texas Criminal Court of Appeals ("TCCA") decision in Gribble v. State, 808 S.W.2d 65 (Tex.Crim.App.1990) (en banc) relating to the presentation of mitigating evidence in death penalty cases; and Judge Harmon acted capriciously in withdrawing the fifty additional peremptory challenges. Buntion also raised additional claims that are not relevant to this appeal.

In a recusal hearing before Judge Ables of the 216th District Court, Judge Harmon admitted that he made the comment that he was doing "God's work" in seeing the defendant executed but claimed that everyone except Buntion realized that it was a joke. He also stated that his criticism of the Gribble decision was related to his belief that the opinion provided a lack of guidance to trial judges. Finally, Judge Harmon testified that while he had an opinion as to what the outcome of the case would be, he would not let this prediction affect his trial rulings. Judge Ables denied the recusal motion.

The court, still in jury selection, recessed from December 19, 1990, until January 7, 1991. On Christmas Eve, Judge Harmon called Scardino and told him that he could no longer represent Buntion. The dismissal of defense counsel was widely reported in the Texas media, with Judge Harmon making statements to the press that he believed defense counsel Scardino was attempting to derail the proceedings. On December 30, 1990, Judge Harmon again contacted the media, saying that Scardino would not be removed as Buntion's counsel. Judge Harmon made this decision after a state prosecutor and one of Buntion's other attorneys visited him at home and presented him with a TCCA decision prohibiting the arbitrary removal of counsel. The judge stated that he was still convinced that Scardino was attempting to "sabotage" the trial.

When the court reconvened on January 7, 1991, all of the jurors except for the alternates had been selected. Defense counsel requested that, in light of the intense media attention given to the trial during the recess, the jurors be questioned regarding their exposure to the reports. Judge Harmon allowed questioning of those two jurors who indicated that they were aware of the attempted removal of Scardino. Neither of these jurors were removed, and the alternates were chosen.

On January 8, 1991, the defense again filed a motion to recuse Judge Harmon and for a mistrial. This recusal motion was based on the granting and withdrawal of the peremptory strikes, the "God's work" comment, and the attempted removal of Scardino, along with other bases not relevant to this appeal. The defense motion also alleged that Judge Harmon placed a postcard depicting Judge Roy Bean, an infamous Texas "hanging judge," on the bench during portions of jury selection. Judge Harmon had altered the message on the postcard to read "Judge Bill Harmon: Law West of the Perdernales." Judge Jordan of the 198th District Court presided over the hearing on the recusal motion.

During this hearing, Judge Harmon admitted to contacting the Harris County District Attorney's office to discuss the peremptory challenges. He stated that he had contacted the office "on numerous occasions" when he had a legal question, but that he had only "briefly" discussed the issue of the peremptory strikes with the office. He admitted that he placed the Judge Roy Bean postcard on the bench during the voir dire process, but he did not believe that any prospective jurors saw the postcard. He did not state why he placed the postcard on the bench.

Defense counsel Keirnan also testified about an ex parte meeting between the judge and defense counsel Tanner one night at a convenience store. All three of Buntion's lawyers drove to a convenience store around midnight. After Kiernan and Scardino had left, Judge Harmon approached Tanner and accompanied him back to his hotel room. At this point in the hearing, because Kiernan was testifying, the judge stopped the testimony because of the hearsay nature of relating the discussion between Tanner and Judge Harmon. Buntion alleges that Judge Harmon told Tanner that he would accuse the defense attorneys of possessing drugs if they continued to challenge his behavior. Judge Harmon admitted that he accompanied Tanner to his hotel room but denied making any kind of threats. Judge Jordan denied the recusal motion.

The trial began on January 14, 1991. The guilt/innocence phase of the trial lasted until January 24, 1991. At some point during the trial, Buntion alleges that a sheriff in the courtroom told a juror wearing a suit that the juror was "dressed to kill." This comment was not objected to at the time it was made.

The jury found Buntion guilty of capital murder. After listening to the evidence and testimony during the punishment phase of the trial, the jury made the requisite findings on the special issues to sentence Buntion to death. The defense filed post-trial motions, including one seeking a new trial and the recusal of Judge Harmon. The recusal motion was denied by Judge Montgomery of the 178th District Court, and Judge Harmon then denied the motion for a new trial. On direct appeal, Buntion again challenged Judge Harmon's impartiality, but his challenge was rejected and his conviction and sentence were affirmed.

B. State Habeas Proceedings

In his state habeas proceedings, Buntion again alleged that his due process rights were violated because of Judge Harmon's lack of impartiality. He specifically complained about Judge Harmon's prejudging his guilt, the "God's work" comment, the commentary about the Gribble decision, the grant and recision of the peremptory challenges, the display of the postcard, the attempted removal of defense counsel Scardino, and the alleged threatening of defense counsel Tanner. Judge Harmon, the state habeas judge,¹ found that there was no evidence of bias on the part of the trial judge. He also noted that defense counsel often did not object at trial to the behavior complained about in the habeas petition. Judge Harmon denied habeas relief. The TCCA relied on the findings of the lower court and also denied habeas relief.

C. Federal Habeas Proceedings

Buntion alleged numerous grounds of error in his federal habeas petition. However, the sole issue before this Court is Buntion's claim that he was denied due process because Judge Harmon was not impartial. Buntion points to the following facts as establishing bias: the judge's pretrial suggestion that Buntion was guilty; the "God's work" comment; the statements about the Gribble decision;...