Busby v. Dretke

• Decision Date: 04 February 2004
• Docket Number: No. 03-40492.,03-40492.
• Citation: 359 F.3d 708
• Parties: Jasen Shane BUSBY, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 708

359 F.3d 708

Jasen Shane BUSBY, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 03-40492.

United States Court of Appeals, Fifth Circuit.

Filed February 4, 2004.

Revised February 25, 2004.

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Thomas Scott Smith (argued), Smith & Smith, Sherman, TX, Petitioner-Appellant.

Woodson Erich Dryden, Asst. Atty. Gen. (argued), Austin, TX, for Respondent-Appellee.

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

Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.

KING, Chief Judge:

Petitioner-appellant Jasen Shane Busby has been convicted of capital murder in the Texas state courts and sentenced to death. The district court denied Busby's petition for a writ of habeas corpus but granted Busby a certificate of appealability (COA) on several issues. This court later denied Busby's request for a COA on additional claims. We now address the issues for which Busby was granted a COA. Finding them without merit under the governing standards, we affirm the district court's denial of habeas relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

The basic facts of the crime are no longer disputed at this stage of the proceedings. Busby, his friend Christopher Kelley, and Kelley's girlfriend Brandy Gray lived together in a cabin in Maydelle, Texas. On Sunday, April 16, 1995, they spent the night in a trailer in Antioch with Tenille Thompson, an acquaintance. The next morning, Busby drove Kelley's truck to buy donuts for the group for breakfast. When Busby returned, he was accompanied by Darrell Smith. The group made several trips to various places that day, and at one point some members of the group, including Busby, took turns shooting an assault rifle outside of the Maydelle cabin. During the course of the day they also purchased some marijuana, which some of the group, including Busby, smoked later that night at the Antioch trailer.

Around ten o'clock that night, Busby and Smith went outside the trailer. Kelley, who was still inside the trailer, heard them loading a gun and talking about how many bullets were in it. Kelley started to open the door but found that someone else was already opening it from the other side. Busby then shot Kelley, Gray, and Thompson and drove off in Kelley's truck with Smith. The two women were dead. Kelley, with a gunshot wound in the neck, went to a neighboring house for help. He described Busby and the truck to the police. Kelley survived the wound and would testify at Busby's trial, providing many of the details recounted above.

The police took Busby and Smith into custody on the night of the shootings after an officer spotted Kelley's truck on the highway. Busby had a clip of bullets in his pocket. Investigators spoke to both men late that night and into the next morning. After being read his rights, Busby gave a taped confession, which he would later claim was the product of drug intoxication. Smith told investigators that Busby had hidden the murder weapon, and Smith showed them where to find it. The authorities recovered the gun, which was later linked to shells found at the scene of the killings. Busby was indicted for capital murder.

The legal claims in this appeal arise from two sets of circumstances that occurred while Busby was awaiting trial. First, Busby claims that pretrial publicity poisoned the atmosphere in Cherokee County, the site of the trial. At the time, Cherokee County had a population of approximately 42,000 people. The only local daily newspaper was the Jacksonville Daily Progress, with a paid circulation of around 5,500. The paper ran at least a dozen articles about the murders on its front page, including articles and photographs that identified Busby as the only suspect, cited evidence against him, referred to a confession, pictured him in handcuffs, and reported an allegation that he was a Satanist. The Cherokeean Herald, a weekly paper with a circulation of about 3,500, gave the case less prominent coverage but also ran articles about the case, including stories concerning the amount of fees that Busby's court-appointed lawyers were incurring at the taxpayers' expense.

Busby filed a motion to change venue. During a hearing on the motion, the court heard testimony from several prominent citizens who opined, based on their reading of community sentiment, that many residents of the county had already decided that Busby was guilty. The county sheriff testified that there were threats against Busby's life; he stated that he had opposed the defense team's request to visit the crime scene because he feared violence. Other citizens who testified at the hearing, including some of those called by Busby, said that there had been relatively little discussion of the case in the community and that many people had not heard of Busby. The trial judge denied the motion to change venue.

The second set of facts relevant to this appeal involves certain letters that Busby wrote to friends and family while in pretrial detention. The jail's policy manual stated that all outgoing non-privileged inmate mail could be inspected and read, and it regularly was. Pursuant to this policy, jail staff came across letters in which Busby admitted to and described the killings, made what appeared to be threats against others, and suggested that a correspondent send him drugs. (This was after Busby had already admitted to the killings in the taped confession, mentioned above.) Before sending the letters off to their addressees, the jailers copied them and turned the copies over to investigators.

At trial, Busby objected to the state's use of the letters against him. He pointed out that no warrant had been issued to search Busby's mail, and he contended that reading the letters constituted an illegal interrogation. Relevant to this appeal, Busby also claimed that the jail's policy violated the First Amendment, although that was not the primary basis for his objection. In deciding whether to admit the letters, the trial judge heard testimony from the county sheriff and the jail administrator, who testified regarding the jail's mail policies. They stated that jail staff read mail in order to watch for suicide risks, escape plans, threats of violence, and other dangers to jail safety and security. It does not appear from the record that Busby was targeted in particular for surveillance, nor does it appear that the mail policy, which accorded with state jail regulations,¹ was directed at detecting inculpatory communications. The jail administrator testified that inmates were not given copies of the jail's policy manual, which explicitly authorized the reading of inmates' non-privileged mail. The inmates instead received a brief inmate handbook, which did not explicitly warn inmates that their mail would be read. The inmate handbook did, however, instruct inmates not to seal outgoing envelopes unless the envelope contained privileged mail; according to the handbook, sealed non-privileged mail would be rejected. Accordingly, the practice within the jail was that non-privileged mail was given to jailers unsealed. Some of Busby's letters, including his early letters, suggest that Busby suspected that jailers could read his mail. The trial judge overruled Busby's objections to using the letters at trial.

During the guilt phase of the trial, the state called Mark Oppen, a friend who had received some of the letters the jailers had read and copied. Through Oppen, the state introduced two letters in which Busby described the killings. On cross-examination, the defense introduced another letter that Busby wrote to Oppen in which Busby denied committing the murders and told Oppen to throw away the previous letters.

The state introduced dozens more letters in the punishment phase of the trial. Some of these letters showed Busby as remorseless and revealed violent thoughts directed at Kelley and the judge. Other letters — including some of those introduced by the state as well as letters put into evidence by the defense — were more sympathetic in that they showed Busby's love for his family and his newfound devotion to the Bible; many of the letters were arguably mitigating because they suggested that Busby had been in a marijuana-and LSD-induced daze on the night of the killings. Apart from the letters, the state's case in the punishment phase included testimony from people to whom Busby had made arguably threatening remarks, testimony from an inmate who had overheard Busby saying that he would go on a shooting "rampage" if he got out, and expert testimony from a psychologist who opined that there was a significant risk that Busby would commit future acts of violence. The defense called a dozen witnesses in the punishment phase, including jail employees who testified to Busby's good behavior in jail, two medical experts, and ministers, friends, and family who spoke of Busby's non-violent character.

Busby was sentenced to death on July 27, 1996. The conviction was automatically appealed to the Texas Court of Criminal Appeals. His direct appeal asserted eleven points of error, but the state's use of the letters was not among them. The Court of Criminal Appeals affirmed Busby's conviction and sentence on March 31, 1999. Busby v. Texas, 990 S.W.2d 263 (Tex.Crim.App.1999). Busby unsuccessfully sought certiorari from the United States Supreme Court. Busby v. Texas, 528 U.S. 1081, 120 S.Ct. 803, 145 L.Ed.2d 676 (2000).

On November 20, 1998, Busby filed an application for post-conviction relief in state court. Following an evidentiary hearing, the trial court entered findings of fact and conclusions of law and recommended that Busby's request for habeas relief be denied.² In a brief order, the Texas Court of Criminal Appeals adopted the lower court's findings, conclusions, and recommendation without further comment. Ex parte Busby, No....