Clark v. Collins
| Decision Date | 14 April 1994 |
| Docket Number | No. 91-2026,91-2026 |
| Citation | 19 F.3d 959 |
| Parties | Herman Robert Charles CLARK, Jr., Petitioner-Appellee Cross-Appellant, v. James A. COLLINS, Director, Texas Dept. of Criminal Justice, Institutional Division, Respondent-Appellant Cross-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William C. Zapalac, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, TX, for appellant.
Louis H. Salinas, Jr., Butler & Binion, Houston, TX, for appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before POLITZ, Chief Judge, JOLLY and HIGGINBOTHAM, Circuit Judges.
The State of Texas appeals a grant of habeas corpus relief to Herman Robert Charles Clark, Jr., vacating the death sentence imposed on him due to a violation of Penry v. Lynaugh. 1 Clark cross-appeals, challenging the denial of postconviction relief on 14 other grounds. We affirm in part, reverse in part, and remand with instructions to deny the writ.
At approximately 3:00 a.m. on April 4, 1981, Clark, armed with a gun, forcibly entered the Houston apartment of Joseph Edward McClain. McClain and his girlfriend were asleep in one bedroom while the girlfriend's son slept in another. After a brief reconnaissance of the dwelling Clark awakened the three occupants and robbed them at gunpoint. Confining McClain and the child in a bathroom, he brought the woman into the child's bedroom and prepared to rape her. Clark inadvertently left the gun within her reach as he searched the kitchen for matches to light a marihuana cigarette. She grabbed the gun and cried out for help. Clark rushed back to the son's bedroom as McClain emerged from the bathroom. In the ensuing struggle Clark shot McClain and the woman. McClain died. After police apprehended Clark, and against the advice of his attorneys, he made a full confession, admitting a preconceived plan to burglarize the McClain apartment and rape any female he might encounter there. He disclaimed any intent to kill, asserting that he intended only to wound McClain to facilitate escape.
Clark pleaded not guilty to a grand jury indictment charging capital murder in the course of committing and attempting to commit robbery, burglary, and aggravated rape. A jury found him guilty. During the penalty phase the state introduced evidence that Clark, both before and after killing McClain, had committed three other burglaries involving rape and sodomy of female victims. Taking the stand against his attorneys' advice, Clark admitted to those offenses as well as "60 to 70 incidents, probably upward to 100" others, but attributed all to mental illness, including post-traumatic stress disorder resulting from prior incarceration. Clark further testified that, during childhood, he suffered sexual assaults at his father's hands and had to "hit the streets" to support his family after his parents' divorce. The jury answered affirmatively the special issues then set forth in Tex.Code Crim.Proc. art. 37.071(b), 2 requiring the trial court to impose a sentence of death by lethal injection. 3
On direct appeal Clark claimed that the Texas capital sentencing scheme unconstitutionally failed to require jury consideration of all mitigating evidence--an argument now recognized as a Penry claim--and asserted 11 other points of error. 4 The Texas Court of Criminal Appeals affirmed the conviction and sentence. 5 The Supreme Court denied his petition for certiorari. 6
After rejection of an initial state habeas corpus petition, Clark filed simultaneous state and federal applications for postconviction relief. Both petitions alleged ineffective assistance of counsel in five respects; 7 presentation at the penalty phase of unfairly inflammatory testimony and closing argument regarding other crimes he committed amount to victim impact statements; improper dismissal for cause of prospective jurors due to their views on the death penalty; underrepresentation of blacks and hispanics in the venire violating the sixth amendment's fair cross-section requirement; vagueness in the Texas capital sentencing statute; and unconstitutionality of the statute as applied to him. 8 Clark's federal petition further alleged a Batson 9 violation at trial, and insanity precluding his execution. The district court dismissed Clark's federal petition without prejudice for failure to exhaust state remedies. The Texas Court of Criminal Appeals later adopted trial-court findings of fact and conclusions of law rejecting Clark's claims.
Clark then filed the instant petition under 28 U.S.C. Sec. 2254, restating the claims asserted in his first federal application and adding an ineffective assistance of counsel claim arising from his trial attorney's failure to challenge racially-motivated use of peremptory strikes. The district court concluded that because Clark had presented evidence at the penalty phase with mitigating force beyond the scope of the Texas special issues, Penry required vacatur of his death sentence, but denied relief without an evidentiary hearing on the 14 other grounds asserted in his petition. Both parties timely appealed.
In Penry v. Lynaugh, the Supreme Court held Johnny Paul Penry's death sentence unconstitutional because in the absence of a supplemental jury instruction the jury could not give mitigating effect to his mental retardation and history of child abuse. Without a definition of "deliberately," it was unclear whether the jury could consider the evidence in relation to the first special issue, while the evidence was solely an aggravating factor with respect to the second special issue and had no relevance to the third.
The Court circumscribed the reach of Penry in Graham v. Collins 10 and Johnson v. Texas. 11 Gary Graham contended that his Texas jury was unable to give mitigating effect to his youth. The Court held that Graham's claim was outside the scope of Penry and barred by Teague v. Lane 12 because it sought on collateral review the announcement of a new rule. The Court explained that Penry stood for the limited proposition that a jury must be able to consider all mitigating evidence. Consistent with Penry, Graham's jury was deemed able to give mitigating effect to the transient condition of youth in answering the future dangerousness issue. Graham, however, sought the proscription of any limitation on the manner in which the jury could consider mitigating evidence. In Johnson, which reached the Court on direct review without a Teague bar, the Court rejected that proposition. Instead, it reaffirmed that states have discretion to structure the way in which capital juries consider mitigating evidence provided the evidence may be considered in some manner.
While Graham and Dorsie Lee Johnson cited youth as a factor with relevance beyond the Texas special issues, Clark contends that his jury was unable to give mitigating effect to the sexual abuse that he suffered as a young child. We applied the teachings of Graham and Johnson to evidence of child abuse in Motley v. Collins. 13 Motley's father subjected him to brutal beatings from the age of four until at least age thirteen; during that period he also forced the child to engage in anal and oral sex. A psychiatrist testified that such an upbringing tended to produce violent antisocial behavior, a condition which had the possibility of successful treatment. Observing that Motley's evidence, unlike Penry's, indicated that he was subject to change, we found that the jury was able to give mitigating effect to his evidence of child abuse in answering the future dangerousness inquiry, and we held that his habeas claim was barred by Teague.
Clark's evidence similarly pointed to the possibility of rehabilitation. Although declining to predict that he would no longer be a menace to society, he expressed confidence that treatment would alleviate his psychological "torments."
I'm sure of that.... [I]f it's possible to acquire psychiatric help, I intend to do that; because since I've been at the rehab unit the past year, I've talked to the resident psychologist there. And he's helped me to work out a lot of problems and mental aspects of my character that I didn't understand.
Defense counsel elicited additional testimony about Clark's desire to change. The police officer who took Clark's confession testified that Clark purportedly agreed to cooperate because "he was tired of doing what he had done [and] wanted to change his life." Clark confirmed that sentiment.
Yes, sir, it's very true; because for a long time--I would say for at least a year--I had begun to think about it seriously, the type of human being I had become and what I was doing and how it was causing people to feel that I was coming in contact with. I'm not a callous-type person. I knew they must have felt great amounts of fear, not just of their lives, but of their relatives involved. And because of that factor, knowing that what I was doing was getting more and more out of hand where it seemed I was losing control of it, I tried to think of different ways within myself to control the type of human being I was becoming.
This is not a picture of an individual who, like Penry, is unable to learn from his mistakes, but reflects an individual who wants to overcome the handicaps of the past and is optimistic about his ability to do so. This would militate in favor of a negative response to the question whether Clark would be a continuing threat to society. The jury was free to give the evidence mitigating effect in answering the second special issue. Clark, like Motley, would have us go beyond the scope of Penry and announce a new rule on collateral review. This we may not do. The district court erred in granting habeas relief. 14
Clark first contends on cross-appeal that the district court erroneously rejected, without an evidentiary hearing, his ineffective assistance of counsel claims. In ...
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