Corwin v. Johnson

• Decision Date: 07 August 1998
• Docket Number: No. 97-20890,97-20890
• Citation: 150 F.3d 467
• Parties: Daniel Lee CORWIN, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 467

150 F.3d 467

Daniel Lee CORWIN, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 97-20890.

United States Court of Appeals Fifth Circuit.

Aug. 7, 1998.

Michael A. Maness, Houston, TX, for Petitioner-Appellant.

Douglas A. Danzeiser, Austin, TX, for Respondent-Appellee.

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

Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Daniel Lee Corwin, a Texas death row inmate, seeks a certificate of appealability ("COA") to review the district court's denial of his application for writ of habeas corpus. For the reasons that follow, we deny Corwin's application for a COA.

I.

A. Facts & Procedural History

Corwin was sentenced to death following his state court conviction for murdering more than one person pursuant to the same scheme or course of conduct. TEX. PENAL CODE ANN. § 19.03(a)(7)(B) (West 1994). ¹ His conviction and sentence were affirmed by the Texas Court of Criminal Appeals. Corwin v. State, 870 S.W.2d 23 (Tex.Crim.App.1993) (en banc). The Texas Court of Criminal Appeals summarized the facts supporting Corwin's conviction and sentence, and Corwin has acknowledged that this summary of the facts is accurate.

Over the course of nine months in 1987 [Corwin] abducted, sexually assaulted, and killed two women, and then attempted to abduct, and when he could not, killed, a third. In July of 1987 he abducted twenty-six year old Debra Ewing from the Huntsville Vision Center, where she worked. He apparently drove her to a remote area of Montgomery County, raped her in the front seat of his truck, and then strangled her with a ligature of some sort and stabbed her twice in the chest. In February of the same year [Corwin] had abducted a seventy-two year old Alice Martin, who was taking her daily walk along a farm to market road in Madison County. He apparently drove her to a more remote area in Robertson County, raped her in the front seat of his truck, and then strangled her with a ligature and stabbed her four times in the back. On Halloween evening of 1987 [Corwin] tried to force thirty-six year old Mary Risinger into his truck at a car wash in Huntsville. When she put up a struggle, he stabbed her in the throat, severing every major blood vessel in her neck.

At the punishment phase it was shown [Corwin] had committed similar offenses both before and after the three offenses in 1987. In 1975 [Corwin] abducted a high school classmate and drove her in her own car to a gravel pit, where he raped her. He then forced her out of the car, slashed her throat, stabbed her in the heart, and left her for dead. Miraculously, she lived. [Corwin] was assessed a forty year prison sentence for this offense. In October of 1988 [Corwin] abducted a Texas A & M co-ed in her own vehicle and drove her to a park. There he sexually assaulted her, then tied her arms around a tree and slashed and stabbed her throat. She also survived. [Corwin] was serving time for this last offense during the instant prosecution.

Id. at 27.

Corwin filed an application for writ of habeas corpus in the state trial court, in which The Texas Court of Criminal Appeals' opinion issued in April of 1997, which summarily adopted the trial court's findings and conclusions. Ex parte Daniel L. Corwin, No. 33570-01 (Tex.Crim.App. Apr. 23, 1997) (en banc). The Texas Court of Criminal Appeals stated that "[t]he trial court's findings of fact and conclusions of law are supported by the record and upon such basis the relief sought is denied." Id.

he made several claims. The trial court addressed these claims, made findings of fact and conclusions of law, and recommended that Corwin be denied habeas relief. Ex parte Daniel Lee Corwin, No. 89-05-00404-CR-(1) (Tex. D. Ct. Montgomery Cty. Mar. 10, 1997).

In August 1997, Corwin filed an application for federal habeas corpus relief pursuant to 28 U.S.C.A. § 2254 (Supp.1998). Corwin raised the same issues in his federal habeas petition that he raised in his state petition. The Respondent answered Corwin's application and moved for summary judgment. The district court issued a memorandum and order in September of 1997, granting the Respondent's motion for summary judgment and denying both Corwin's § 2254 application and his application for a COA. Corwin v. Johnson, No. H-97-2667 (S.D.Tex. Sept. 18, 1997). Corwin filed a timely notice of appeal. He seeks a COA from this Court on eight of the issues he raised in his petition to the district court. Before discussing the merits of this appeal, we consider the effect of the recently enacted Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996 ² on this case.

B. Application of the AEDPA

Corwin filed his § 2254 federal habeas petition on August 13, 1997. The AEDPA was signed into law by the President on April 24, 1996. In Nobles v. Johnson, this Court held that the AEDPA's provisions apply to a habeas petition when the habeas petition was filed after the enactment of the AEDPA. 127 F.3d 409, 414 (5th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). The AEDPA is therefore applicable in this case.

Under the AEDPA, the petitioner must obtain a Certificate of Appealability (COA) to proceed with his appeal. A COA will be issued if the movant makes a substantial showing of the denial of a constitutional right. 28 U.S.C.A. § 2253(c)(2) (Supp.1998).

Corwin first challenges this Circuit's interpretation of the AEDPA. ³ Corwin argues that this Circuit's interpretation of the AEDPA's language violates the Supremacy Clause because it requires federal courts to give deference to state court decisions regarding the validity of trial practices under the United States Constitution.

In this Circuit, provided the state court conducted a full and fair adjudication of the petitioner's claims, pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1), and questions of fact are reviewed under § 2254(d)(2). Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). Under § 2254(d)(1), "an application of law to facts is unreasonable only when it can be said that reasonable jurists considering the question would be of one view that the state court Corwin argues that these interpretations of § 2254 are unconstitutional and that all state court determinations of federal constitutional issues in habeas proceedings should be subject to de novo review by the federal courts. Even if we agreed with this conclusion--which we do not--one panel of this court may not overrule another panel. See United States v. Taylor, 933 F.2d 307, 313 (5th Cir.1991). As a result, Corwin's appeal must be reviewed in accordance with this Circuit's interpretations of the AEDPA, as established in Drinkard.

ruling was incorrect." Id. at 769. "In other words, we can grant habeas relief only if a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists." Id.

We now turn to a consideration of the issues Corwin raises in his application for a COA.

II.

A. Corwin's Absence from the First Day of Jury Selection

Corwin first argues that his Sixth Amendment right to the effective assistance of counsel and his Fourteenth Amendment right to a fair trial were violated because he was not physically present in the courtroom during the preliminary qualification of jurors. Corwin was absent from the initial day of jury selection, during which exemptions and excuses were considered and the venirepersons were asked to answer a questionnaire. Corwin raised this argument in his state application for habeas corpus. The state trial court ⁴ concluded that Corwin had waived any error regarding his absence from the proceeding because after he appeared for voir dire, he failed to object to the disqualification of any juror while he was absent from the courtroom. Ex parte Daniel Lee Corwin, No. 89-05-00404-CR-(1), at 7 (Tex. D. Ct. Montgomery Cty. Mar. 10, 1997). The trial court alternately determined that Corwin's absence from the preliminary jury qualification proceeding constituted harmless error and that Corwin had no right to be at the proceeding because his presence would not have contributed to the fundamental fairness of the proceeding. The state trial court's conclusions were summarily adopted by the Texas Court of Criminal Appeals. Ex parte Daniel L. Corwin, No. 33570-01 (Tex.Crim.App. Apr. 23, 1997)(en banc). The district court concluded that Corwin's failure to object to the disqualification of jurors in his absence constituted an independent and adequate state ground which procedurally barred federal review of his claim.

If a state court decision rejecting a federal habeas petitioner's constitutional claim "rests on an adequate and independent state procedural bar, and does not fairly appear to rest primarily on federal law, we may not review the merits of the federal claim absent a showing of cause and prejudice for the procedural default, or a showing that our failure to review the claim would result in a complete miscarriage of justice."

Boyd v. Scott, 45 F.3d 876, 879-80 (5th Cir.1994) (quoting Young v. Herring, 938 F.2d 543, 546 (5th Cir.1991)) (other citations omitted).

Corwin challenges the district court's ruling on a number of grounds. Corwin first argues that because the contemporaneous objection rule is not regularly followed in Texas, the procedural bar fails. See Sones v. Hargett, 61 F.3d 410, 416 (5th Cir.1995) (holding that the presumption that a state procedural rule may bar review of a claim for federal habeas relief may be rebutted by the fact that the state procedural rule is not strictly or regularly followed). The Supreme Corwin also argues that the trial court did not clearly state that it was dismissing the issue due...