Byrne v. Butler

• Decision Date: 09 May 1988
• Docket Number: 87-4708,Nos. 87-4687,s. 87-4687
• Citation: 845 F.2d 501
• Parties: Edward R. BYRNE, Jr., Petitioner-Appellee, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary, Respondent- Appellant. Edward R. BYRNE, Jr., Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 501

845 F.2d 501

Edward R. BYRNE, Jr., Petitioner-Appellee, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary,

Respondent- Appellant.

Edward R. BYRNE, Jr., Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary,

Respondent- Appellee.

Nos. 87-4687, 87-4708.

United States Court of Appeals Fifth Circuit.

May 9, 1988.

Rehearing Denied in No. 87-4708 June 2, 1988.

Certiorari Denied June 30, 1988.

See 108 S.Ct. 2918.

Henry N. Brown, Jr., Dist. Atty., 26th Judicial Dist. Court of La., Benton, La., for respondent-appellant Butler.

Amanda Potterfield, Nancy A. Baumgartner, Richard E. Klausner, Cedar Rapids, Iowa, James H. Carter, Bossier City, La., for petitioner-appellee Byrne.

Appeals from the United States District Court for the Western District of Louisiana.

Before RUBIN, KING and HIGGINBOTHAM, Circuit Judges.

KING, Circuit Judge:

Edward R. Byrne, Jr., a state prisoner under a sentence of death, moves this court for a certificate of probable cause to appeal the district court's denial of his petition for a writ of habeas corpus. In addition, the state of Louisiana asks us to vacate the stay of execution granted by the district court. Finding that Byrne has failed to make a substantial showing of the denial of a federal right, we deny his application for a certificate of probable cause. Moreover, as Byrne has demonstrated neither a substantial case on the merits nor that the balance of the equities weighs in his favor, we vacate the stay of execution granted by the district court.

I.

On the afternoon of August 14, 1984, the body of Roberta Johnson ("Johnson") was discovered in the locked office of a gas station in Bossier City, Louisiana. Three weeks later, the grand jury of Bossier Parish, Louisiana returned a true bill indicting Edward R. Byrne, Jr. ("Byrne") for first degree murder in violation of La.Rev.Stat.Ann. Sec. 14:30 (West 1986). ¹ M. Randal Fish ("Fish") and Ford E. Stinson, Jr. ("Stinson") were appointed to represent Byrne at trial. On November 27, 1984, a twelve person jury found Byrne guilty as charged. ² In the penalty phase of Byrne's bifurcated trial, the jury unanimously recommended the death penalty, finding the existence of three aggravating circumstances: (1) the victim had been killed during the commission of an armed robbery; (2) the offense was committed in a particularly heinous, atrocious and cruel manner; and (3) the victim was a witness to a crime committed by the defendant. ³ See La.Code Crim.Proc.Ann. art. 905.4 (West 1984). Byrne was sentenced to death on January 29, 1984. Byrne's conviction and sentence were upheld by the Louisiana Supreme Court, State v. Byrne, 483 So.2d 564 (La.1986), and his petition for rehearing was denied on March 7, 1986. Byrne's petition for writ of certiorari to the United States Supreme Court was denied on October 6, 1986, Byrne v. Louisiana, --- U.S. ----, 107 S.Ct. 243, 93 L.Ed.2d 608 (1986), and Byrne's petition for a rehearing of that decision was denied on December 1, 1986.

Byrne's subsequent attempt to secure post-conviction relief in the Louisiana state courts proved unsuccessful. Having exhausted his state remedies, Byrne filed a "Petition for Writ of Habeas Corpus, Request For Evidentiary Hearing, And Application For A Stay of Execution" in the United States District Court for the Western District of Louisiana on January 16, 1987. On January 17, the district court granted Byrne a stay of execution, requested all records and transcripts, ordered that briefs be filed, and granted Byrne's application to proceed in forma pauperis. In a memorandum ruling filed August 31, the district court, after concluding that an evidentiary hearing was unwarranted, denied Byrne's habeas petition and found that "[a]ll of [Byrne's] allegations have been conclusory, unsubstantiated and clearly refuted by the existing record." The district court also entered a separate judgment denying Byrne's petition. On September 17, the district court entered a supplemental order to clarify its earlier ruling. In that supplemental order, the district court stressed that the January 17 stay of execution would remain in effect until all appeals concerning Byrne's application for habeas relief were either waived or exhausted. On September 24, the district court denied Byrne's Rule 60(b) motion for relief from the judgment.

Byrne filed timely notice of appeal from the denial of habeas relief and sought a certificate of probable cause to authorize appeal and permission to proceed in forma pauperis. ⁴ On October 5, the district court found that a certificate of probable cause should not issue and denied Byrne's application "as frivolous, without merit and not being in good faith." We have before us Byrne's application for a certificate of probable cause to appeal. In addition, the state requests that we vacate the district court's stay of execution.

II.

In his application, Byrne argues that: (1) the district court erred by failing to conduct an evidentiary hearing to determine (a) whether the trial court violated Byrne's rights to a fair trial and impartial jury by improperly restricting defense voir dire on the meaning of life imprisonment; (b) whether erroneous and misleading statements by the state prosecutor during voir dire regarding the potential for future release on parole improperly influenced the jury; and (c) whether judicial misconduct prevented Byrne from presenting evidence on the issue of the effect the "tainted" voir dire had on the jury; (2) the state prosecutor's improper comments concerning Johnson's character rendered Byrne's trial fundamentally unfair; (3) the district court erred by failing to conduct an evidentiary hearing on Byrne's claims that his attorneys accorded him ineffective representation both at trial and on direct appeal; (4) because the jury was allowed to consider an impermissible aggravating circumstance, a new sentencing hearing is required; and (5) relevant mitigating evidence was excluded at the penalty phase of the trial in violation of the principles set forth by the Supreme Court in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) and similar cases.

III.

The standard for granting a certificate of probable cause under Federal Rule of Appellate Procedure 22(b) is whether the petitioner has made a substantial showing of a denial of a federal right. Brogdon v. Butler, 824 F.2d 338, 340 (5th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 13, 97 L.Ed.2d 802 (1987) (citing Stewart v. Beto, 454 F.2d 268, 279 n. 2 (5th Cir.1971)). In requiring a substantial showing of the denial of a federal right, the petitioner need not show that he should prevail on the merits. Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1982) (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980)). Rather, he must demonstrate that the issues are subject to debate among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are worthy of encouragement to proceed further. Id. "In a capital case, the nature of the penalty is a proper consideration in determining whether to issue a certificate of probable cause, but the severity of the penalty does not in itself suffice to warrant the automatic issuing of a certificate." Barefoot, 463 U.S. at 893, 103 S.Ct. at 3395. While we are acutely aware of the fact that Byrne faces a sentence of execution, we are unable to conclude that Byrne has made a substantial showing of the denial of a federal right. Therefore, we deny his application for a certificate of probable cause to appeal.

IV.

A. Voir Dire

In his opening statements during voir dire, Fish described the sentencing alternatives available to the jury in a manner designed to favorably predispose them towards a sentence of life imprisonment. Fish sought to impress upon the veniremen the notion that life imprisonment would not result in any form of early release. The following exchange occurred between Fish, the state prosecutor, and the trial court:

[MR. FISH:] ... But there are only two choices. One is life imprisonment without benefit of parole, probation or suspension of sentence. That means life in prison with no parole; it means the parole board can't let him out. No probation--that means the Judge can't put him on probation. No suspension of sentence. That means the Judge can't suspend his sentence.

MR. BROWN: Your Honor, my only objection is that that is not an entirely accurate statement of the law. I don't object to him stating what the penalties are, but as far as his comment about what the parole board may or may not can do, I think it's not entirely accurate, but--

MR. FISH: Your Honor, I think without parole, it certainly means the parole board can't let him out.

MR. BROWN: Mr. Fish knows full well what that means and what the possibilities are. And I object to that particular statement.

MR. FISH: Your Honor, I would--I would--

THE COURT: I'm going to sustain the objection and I would admonish those of you who are in the jury box and those of you who are prospective jurors that what the attorneys say about the law may or may not be the law. The law in this case will be given to you at the close of this case by the Court and it will be your duty to accept that law as given by the Court irregardless [sic] of what the attorneys may or may not say.

MR. FISH: Your Honor, I would move for a mistrial on the basis of Mr. Brown's statement. I think that it's improper for Mr. Brown to raise the element of a possibility of release when dealing with a death penalty case.

MR. BROWN: I have no [sic] raised that possibility at all, Your Honor. I mean I,--stayed away from it.

THE COURT: You made a valid objection; the Court sustained the objection. The request for mistrial is denied.

Later, while questioning prospective jurors, Fish once again stated that the parole board was powerless to grant...