Celestine v. Butler

• Decision Date: 18 July 1987
• Docket Number: No. 87-4536,87-4536
• Citation: 823 F.2d 74
• Parties: Willie Lawrence CELESTINE, Petitioner-Appellant, v. Hilton BUTLER, Warden, Louisiana State Penitentiary, Angola, Louisiana, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 74

823 F.2d 74

Willie Lawrence CELESTINE, Petitioner-Appellant, v. Hilton BUTLER, Warden, Louisiana State Penitentiary, Angola Louisiana, Respondent-Appellee.

No. 87-4536.

United States Court of Appeals Fifth Circuit.

July 18, 1987.

Millard C. Farmer, Atlanta, Ga., for petitioner-appellant.

J. Nathan Stansbury, Dist. Atty., Lafayette, La., for respondent-appellee.

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

ON APPLICATION FOR A STAY OF EXECUTION PENDING APPEAL AND

FOR CERTIFICATE OF PROBABLE CAUSE

Before RUBIN, WILLIAMS and JOLLY, Circuit Judges:

PER CURIAM:

Willie Lawrence Celestine is under sentence of death and scheduled to be executed on July 20, 1987, by the State of Louisiana. He petitions the right to appeal in forma pauperis, for a certificate of probable cause to appeal, and for a stay of execution. The district court on July 16 denied the stay and the certificate and also denied the petition for habeas corpus on the merits. This petition is Celestine's fourth petition for habeas corpus in the state courts and his fourth under 28 U.S.C. Sec. 2254.

FACTS

Celestine was convicted of first degree murder and sentenced to death in December 1982. The Louisiana Supreme Court affirmed his conviction and sentence. State v. Celestine, 443 So.2d 1091 (La.1983), cert. denied, 469 U.S. 873, 105 S.Ct. 224, 83 L.Ed.2d 154 (1984).

Celestine filed his first petition for habeas corpus relief in November 1984, which the state district court and Louisiana Supreme Court denied. He then sought relief under 28 U.S.C. Sec. 2254 in the United States District Court, and this also was denied in November 1984. This Court issued a certificate of probable cause to appeal, but we eventually denied his habeas corpus petition, and the United States Supreme Court denied certiorari. See Celestine v. Blackburn, 750 F.2d 353 (5th Cir.1984), cert. denied, 472 U.S. 1022, 105 S.Ct. 3490, 87 L.Ed.2d 624 (1985). During these proceedings Celestine was granted his first stay of execution.

Celestine filed his second habeas petition in state district court on September 9, 1985. His sole claim in the second petition was that jurors had been excluded from his panel because of their expressed inability as a matter of conscience to impose the death penalty. The state district court, the Louisiana Supreme Court, and the United States District Court all denied relief, and this Court denied the certificate of probable cause and dismissed the appeal. See Celestine v. Blackburn, No. 85-4665 (5th Cir., Sept. 23, 1985) (unpublished opinion). The United States Supreme Court denied certiorari on June 2, 1986. During these proceedings Celestine was granted his second stay of execution.

On September 9, 1986, Celestine filed his third petition in state district court, claiming that his death penalty resulted from racial discrimination because he was a black who murdered a white. The Louisiana district court and Supreme Court denied relief, but the United States District Court granted a stay of execution on September 15, 1986, that being the third stay granted Celestine. On April 22, 1987, the United States Supreme Court decided McCleskey v. Kemp, --- U.S. ----, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), which upheld the death penalty against a challenge identical to Celestine's because the challenge lacked a specific showing of racial discrimination. After McCleskey, the United States District Court dissolved its stay on June 11, 1987. The state district court thereafter on June 18 set Celestine's execution for July 20.

On July 13, 1987, twenty-five days after the execution date had been set for the fourth time, and only seven days before the scheduled execution date, Celestine's present counsel filed Celestine's fourth petition for post-conviction relief and writ of habeas corpus in the Louisiana district court. The state district court and the Louisiana Supreme Court denied relief on July 13 and 14, respectively. Celestine then filed the petition for writ of habeas corpus and a stay of execution in the United States District Court. This is the petition denied on July 16, 1987.

The issue before us is whether 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. We have stated the standard for reviewing an application for a stay of execution 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.

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 a 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 the favor of granting the stay." O'Bryan v. McKaskle, 729 F.2d at 993 (quoting Ruiz v. Estelle, 666 F.2d at 856.).

The standard for granting a certificate of probable cause under Fed.R.App.P. 22(b) is whether there has been a substantial showing of a denial of a federal right. Steward v. Beto, 454 F.2d 268, 279 n. 2 (5th Cir.1971).

In deciding whether the requirements have been met for the granting of a CPC and for a stay, obviously the merits of the habeas corpus claims must be considered to the extent necessary to determine if they are substantial. In this inquiry, the Court has the benefit of the comprehensive opinion of the United States District Court considering in detail all of the issues raised by petitioner and denying the petition for habeas corpus on the merits. In evaluating petitioner's claims for substantiality, we accept the conclusions of the district court given after thorough and scholarly consideration of each claim on the merits. We add only brief observations with respect to appellant's claims to establish justification for denial of a certificate of probable cause and a stay of execution.

THE CLAIMS

Petitioner's seven claims which he asserts apply to his case are set out in detail in the opinion of the district court. We summarize them briefly:

1. A claim that a statutory aggravating circumstance for the death penalty which merely repeats an element of the capital offense violates the Constitution.

2. It is unconstitutional for the judge in instructions to the jury to lead the jury to believe that the ultimate responsibility of imposing the death sentence does not lie in the jury but lies elsewhere when under the law the ultimate responsibility actually does lie upon the sentencing jury.

3. It is a violation of the Constitution to fail to instruct the jury that it may assess a life sentence rather than the death penalty even though aggravating circumstances justifying the death penalty have been found.

4. 5. 6. These three claims are based upon the American Declaration of Rights and Duties of Man and the Charter of the Organization of American States. Those documents are used to assert a right in the petitioner to claim violation by imposition of the death penalty in a racially discriminatory manner, and two claims based upon the violation of those treaties by the use of a death-qualified jury.

7. The seventh claim is that the death penalty is a cruel and unusual punishment when it is applied in a racially discriminatory fashion.

FIRST CLAIM

The first claim is based upon the so-called Lowenfield issue because the Supreme Court recently granted certiorari in Lowenfield v. Phelps, 817 F.2d 285 (5th Cir.), cert. granted, --- U.S. ----, 107 S.Ct. 3227, 97 L.Ed.2d 734 (1987). In Lowenfield this Court followed the well established law of this Circuit that a statutory aggravating circumstance justifying the death penalty can be counted even though the same aggravation is part of the basic criminal provision establishing the capital offense. In the case of petitioner the factor is aggravated rape.

The jury found three aggravating factors of which aggravated rape was only one. Under Louisiana law any one of the three factors was enough to justify the death penalty. The jury was specifically instructed to this effect. It has been held specifically that when only one aggravating factor is required and two or more are found, holding one of the aggravating factors invalid does not void the death penalty. Zant v. Stevens, 462 U.S. 862, 875-89, 103 S.Ct. 2733, 2747-49, 77 L.Ed.2d 235 (1983). [Judge Rubin and Judge Williams continue to adhere to the dissenting opinion authored by Judge Randall in Williams v. Maggio, 679 F.2d 381 (5th Cir.1982) (en banc) but agree that this panel is bound by that decision as the law of the circuit and by the Supreme Court opinion in Zant.] The Supreme Court, in affirming the death sentence, said:

The jury did not merely return a general verdict stating that it had found at least one aggravating circumstance. The jury expressly found aggravating circumstances that were valid and legally sufficient to support the death penalty.

See also Moore v. Maggio, 740 F.2d 308, 321 (5th Cir.1984), cert. denied, 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985).

The law also, as established by our decisions, is that an aggravating factor may also be one of the elements in the statement of the statutory capital offense. Gray v. Lucas, 677 F.2d 1086, 1104-05 (5th Cir.1982); Wingo v. Blackburn, 783 F.2d 1046 (5th Cir.1986). Thus, we hold in any event that the finding of aggravated rape as an...