Buxton v. Lynaugh
| Decision Date | 21 July 1989 |
| Docket Number | No. 88-2156,88-2156 |
| Citation | 879 F.2d 140 |
| Parties | Lawrence Lee BUXTON, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stanley G. Schneider, Houston, Tex. (court appointed), for petitioner-appellant.
Robert S. Walt, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before RUBIN, KING and HIGGINBOTHAM, Circuit Judges.
After the district court denied his petition for habeas corpus and his application for a certificate of probable cause to appeal, petitioner Lawrence Lee Buxton applied to this court for a certificate of probable cause. We granted the certificate and we now address the merits of Buxton's petition. Because we find no violation of the Constitution or laws or treaties of the United States, 28 U.S.C. Sec. 2241(c)(3) (1971), we affirm the judgment of the district court denying Buxton's application for habeas relief.
A Texas state district court convicted Buxton of the capital offense of murder in the course of a robbery and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction. Buxton v. State, 699 S.W.2d 212 (Tex.Crim.App.1985), cert. denied, 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986). The trial court set Buxton's execution date for September 30, 1986. Buxton filed a petition for a writ of habeas corpus pursuant to Tex.Code Crim. Proc. Ann. Art. 11.07 in the court which had convicted and sentenced him. That court entered factfindings and conclusions based on affidavits filed with the habeas petition and the state's brief in opposition and on the court record without holding a live evidentiary hearing, and it denied the requested relief. On appeal, the Texas Court of Criminal Appeals denied relief.
Buxton immediately filed an application for a writ of habeas corpus in the United States District Court for the Southern District of Texas. He simultaneously filed an application for a stay of execution which was unopposed by the state and granted by the district court on September 29, 1986. Subsequently, the state moved for summary judgment on the habeas petition. The district court granted the state's summary judgment motion and vacated the stay it had previously granted, entering the order on December 18, 1987. On February 24, 1988, the district court denied Buxton's motion for a certificate of probable cause to appeal. We granted a certificate of probable cause and heard oral argument on the petition for writ of habeas corpus. Buxton also requests a stay of execution, although no execution date has been set.
In his petition before this court, Buxton has focused on two claims. The first asserts both that his counsel provided him with ineffective assistance by failing to move for a new trial after sentencing because of juror misconduct and that the district court applied the wrong standard in reviewing the state court's disposition of this question. The second argument is somewhat amorphous; it attacks the Texas capital murder sentencing scheme as unconstitutional on the ground that the scheme allows intentional discrimination against blacks whose victims were white, and at the same time attacks the scheme's constitutionality on the ground that it fails to allow for the consideration of mitigating evidence. In this petition, Buxton has not addressed a number of issues he raised before the district court, and we therefore do not consider them.
Buxton contends that his trial counsel failed to provide him with effective assistance by failing to make a motion for new trial on the ground of juror misconduct even though counsel was aware of the alleged misconduct. 1 Under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order to show that counsel's assistance was so ineffective as to require that his conviction or sentence be overturned, the petitioner must show both that counsel's performance did not amount to "reasonably effective assistance," and that the "deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064. The first prong of the standard inquires into whether counsel's failures were so egregious as to amount to the denial of counsel guaranteed the defendant by the sixth amendment. The second criterion evaluates whether the defendant has shown "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068 (citations omitted); Earvin v. Lynaugh, 860 F.2d 623, 625-27 (5th Cir.1988). Strickland allows the habeas court to look at either prong first; if either one is found dispositive, it is not necessary to address the other. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. See also Murray v. Maggio, 736 F.2d 279, 282 (5th Cir.1984).
Buxton contends that his trial counsel's failure to move for a new trial meets the requirements of both of these prongs. He argues that counsel knew of the juror misconduct and yet failed to act, thereby falling below the standard of reasonably effective assistance, and that action would have resulted in a new trial. Buxton asserts secondarily that the district court applied the incorrect standard of review to the state court's factfindings, given that the findings were based on the affidavits submitted with the pleadings and the paper record. We deal with the second of these contentions first.
With his original state court habeas petition, Buxton filed the affidavit of Sybil Carr-Fitzgerald, one of his court-appointed lawyers at trial. Carr-Fitzgerald averred that she inadvertently overheard the jury's conversation during its deliberations. She stated she "overheard a juror loudly state that he had conceded (paraphrase) his vote during the guilt phase of the trial when he did not feel the defendant was guilty contingent on the agreement by the other jurors that the death penalty would not be imposed by their vote." In her affidavit, Carr-Fitzgerald went on to state that every effort was made to obtain an affidavit from the juror involved and that questionnaires were sent to all members of the jury panel, but the attempts to substantiate further the claim of juror misconduct failed.
Attached to its response to the petitioner's original state court habeas petition, the state filed the affidavit of Buxton's other trial counsel, John Emmett Crow. Crow's version of the episode of alleged juror misconduct was that Carr-Fitzgerald had overheard the jury deliberations and at the time had reported the content of what she overheard: " 'Hell, I didn't even believe he was guilty and now you want me to kill him?' " Crow also asserted that his efforts to obtain an affidavit from the juror who had made the statement were fruitless.
In its findings of fact and conclusions of law on the habeas petition, the state trial court--the same Texas state district court that convicted Buxton--found expressly that the facts asserted in Crow's affidavit were true and served to demonstrate that petitioner received reasonably effective assistance of counsel. It made no explicit finding with respect to the Carr-Fitzgerald affidavit, although it implicitly rejected those portions of it which are inconsistent with Crow's affidavit. 2 The federal district court, in its findings, reviewed the state court's factfindings with a presumption of correctness, citing 28 U.S.C. Sec. 2254(d) (1977) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), and held them to be correct. The district court went on to deny Buxton's ineffective assistance claim, holding that the facts alleged in Crow's affidavit would not have supported a motion for new trial, even if one had been made on this ground. 3
Buxton argues that the district court was incorrect in its deferential review--i.e., with a presumption of correctness--of the state court's factfinding, given that there had been no live hearing in state court. He cites Smith v. Estelle, 711 F.2d 677 (5th Cir.1983), cert. denied, 466 U.S. 906, 104 S.Ct. 1685, 80 L.Ed.2d 159 (1984), to support his position that when no live hearing is held in the state court, and the motion is instead determined on the basis of affidavits, a presumption of correctness will not arise under 28 U.S.C. Sec. 2254 unless--as in Smith--the affidavits are "uncontradicted in their particulars." 711 F.2d at 682. Buxton argues that because in this case the affidavits were contradictory, the absence of a live evidentiary hearing in the state court should force the district court to review the findings more critically.
Buxton's argument must be analyzed within the framework of the federal habeas statute. 4 The general requirements set forth in the statute--that a state court after a hearing made a determination in a proceeding to which the petitioner and the state were parties, and the determination is evidenced by a written finding--are clearly met here. However, the statute also sets forth eight circumstances under which a state court's factfinding which otherwise comports with the statute will not enjoy a presumption of correctness. Among these the pertinent exception is "(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing." 28 U.S.C. Sec. 2254(d)(2). That is, if the federal district court determines that the state court's procedure did not provide for a "full and fair hearing," the district court would be forced to hold an evidentiary hearing of its own. 5
The state court's procedure we are scrutinizing here was, as we noted above, conducted by the court which had originally convicted and sentenced Buxton. That court entered written...
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