Duff-Smith v. Collins
| Decision Date | 17 September 1992 |
| Docket Number | DUFF-SMIT,No. 91-2204,P,91-2204 |
| Citation | 973 F.2d 1175 |
| Parties | Markhametitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Douglas C. McNabb, David Cunningham, Houston, Tex. (court-appointed), for petitioner-appellant.
Robert Walt, Asst. Atty. Gen., William Zapalac, Dan Morales, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before POLITZ, Chief Judge, GARWOOD and JOLLY, Circuit Judges.
Markham Duff-Smith, a Texas prisoner sentenced to death, appeals the rejection of his application for a writ of habeas corpus. Finding no error, for the reasons assigned we affirm the district court's denial of habeas relief.
On October 15, 1975, Gertrude Zabolio, Duff-Smith's adopted mother, was murdered in her home. According to the prosecution, Duff-Smith solicited Walter Waldhauser to kill her and his stepfather, Dow Zabolio. Waldhauser in turn solicited Paul MacDonald, a bail bondsman, who hired Allen Wayne Janecka. Janecka killed Gertrude Zabolio by strangulation.
Duff-Smith was a spendthrift who lived beyond his means. During the period preceding his mother's murder he had several arguments with her over requests for money. He told several persons that he wished her dead. Duff-Smith acted on this desire and determined to secure the murder of both his mother and stepfather. Dow Zabolio was included because Duff-Smith speculated that his stepfather might delay the final distribution of his mother's estate.
Detailed evidence of the crime was provided by MacDonald who testified that in the late summer of 1975 Waldhauser told MacDonald that a friend named "Duff" needed an estate cleared up in order to accelerate receipt of his inheritance. When MacDonald stated that he was not willing to commit murder Waldhauser asked him to use his bail bond connections to find someone willing to do so.
Waldhauser later called to ask whether MacDonald had located a hit man. Janecka was present and MacDonald asked him whether he knew of anyone available for murder for hire and Janecka replied that he would take the job. MacDonald and Janecka then contracted to perform the killings for $10,000--$6,500 for Janecka and $3,500 for MacDonald who was to assist Janecka in planning. A small amount of this money was provided up front.
Waldhauser supplied MacDonald with details about the intended victims, including the fact that on each Wednesday night they ate dinner at a nearby cafeteria. On Wednesday October 15, 1975 Janecka and MacDonald staked out the Zabolio home. When Gertrude Zabolio left alone to go to the cafeteria Janecka entered the home to await her return. Janecka then spent several hours in the Zabolio home with Mrs. Zabolio, ostensibly waiting for her husband to return from work. 2 According to MacDonald's testimony, Janecka told him that Mrs. Zabolio resignedly accepted her imminent death and was not surprised when Janecka revealed that her son was behind the plan. Eventually Janecka strangled the victim with her pantyhose, leaving behind two purported suicide notes, as well as a "practice" pantyhose tied into a loop, much like the one used in the strangulation. 3
The next day MacDonald met Waldhauser and Duff-Smith to discuss the murder. Having been told by Waldhauser to bring some proof that he had committed the murder, MacDonald brought Mrs. Zabolio's driver's license which Janecka had given him. The license was accepted by Duff-Smith without comment. During this same meeting Duff-Smith complained that only one-half of the contract had been completed. He informed MacDonald that no more money would be paid to Janecka until Dow Zabolio had also been killed.
After a few months Janecka grew impatient and threatened MacDonald. MacDonald told Waldhauser about Janecka's threats, but no money was forthcoming. Finally, Waldhauser gave MacDonald Duff-Smith's unlisted phone number so that MacDonald could "shake things up a bit." When MacDonald told Duff-Smith about Janecka's threats, Duff-Smith agreed to "get it taken care of." Shortly thereafter, Janecka received full payment from Waldhauser.
The police were eventually alerted of the murder conspiracy by Donald Wayne Chaline. Chaline worked with Duff-Smith at Prudential Insurance Company in 1975. According to Chaline, he and Duff-Smith met several months after the murder. During the chance meeting Duff-Smith told Chaline in great detail about how he had arranged for the death of his mother in order to collect proceeds from her estate.
For three years Chaline said nothing to the police because he felt implicated. In 1979 Chaline read about the deaths by gunshot of Duff-Smith's sister, Diana Wanstrath, her husband, John Wanstrath, and their 14-month-old child, Kevin Wanstrath. 4 Apparently Duff-Smith had squandered his inheritance from his mother and he hired Waldhauser and Janecka to murder the Wanstrath family so he could inherit his sister's estate. Suspecting foul play by Duff-Smith, Chaline called and then eventually met with the homicide detective investigating the Wanstrath killings.
Duff-Smith was tried for the murder of his mother. 5 During his case-in-chief he first presented the perjured testimony of two witnesses. 6 The third witness defense counsel called was Jerry Sol Eickenhorst. Unfortunately for Duff-Smith, Eickenhorst destroyed the defense theory. Eickenhorst testified that Duff-Smith had suborned perjury by various inmates and had concocted a false story that Waldhauser and MacDonald had murdered Mrs. Zabolio and were attempting to place the blame on him to avoid the death penalty. In support of his testimony, Eickenhorst provided the handwritten notes made by Duff-Smith outlining the perjurious scheme. Duff-Smith conceded that the handwriting was his.
Duff-Smith was convicted of murdering Gertrude Zabolio for remuneration, namely, for half of the proceeds of her $190,000 estate. The jury returned affirmative findings to the two special issues under Article 37.071(b), V.A.C.C.P., and punishment was assessed at death. The Texas Court of Criminal Appeals affirmed the conviction and death sentence. 7
Execution was scheduled for January 10, 1986. When Duff-Smith filed a petition for habeas relief in state court a stay was issued. Following an evidentiary hearing the trial court entered findings of fact and conclusions of law refusing all relief. The Texas Court of Criminal Appeals denied Duff-Smith's habeas application and the trial court reset the execution for October 8, 1987.
Duff-Smith filed his first federal habeas petition in September of 1987 and a stay of execution was granted. Duff-Smith raised 11 claims, including those raised in this appeal. An evidentiary hearing was conducted and the magistrate judge entered his report recommending that the writ be denied. The district court adopted the magistrate judge's recommendation, entered an order denying the writ of habeas corpus, vacated the stay of execution, and denied a certificate of probable cause.
Duff-Smith filed a notice of appeal, which under Fed.R.App.P. 21 we consider to be a request for a certificate of probable cause, raising ten claims for relief. He alleges that: (1) his substitute counsel was not given adequate time to prepare his habeas claims; (2) two prospective jurors were improperly removed; (3) in violation of a discovery order, the prosecution failed to reveal the existence of the handwritten script outlining the perjurious defense theory; (4) witness Eickenhorst was an undercover agent for the state who improperly solicited admissions from Duff-Smith after his right to counsel had attached; (5) Eickenhorst affirmatively deceived defense counsel; (6) the state offered Eickenhorst undisclosed benefits and inducements; (7) subpoenas of material witnesses were quashed; (8) he was denied effective assistance of counsel; (9) the evidence was insufficient to sustain a conviction of capital murder for remuneration; and (10) unadjudicated criminal conduct was introduced during the punishment phase of his trial. We granted the CPC.
In considering a federal habeas corpus petition federal courts must accord a presumption of correctness to state court factual findings. 8 We accept the district court's findings of fact unless they are clearly erroneous; issues of law are reviewed de novo. 9
The record indicates that Duff-Smith was represented at trial by attorneys Victor Blaine and Candelario Elizondo. His direct appeal, state habeas petition, and the initial aspects of the federal habeas petition were handled by attorneys Will Gray and Carolyn Garcia. During the second evidentiary hearing Gray and Garcia asked to withdraw as counsel. The magistrate judge ultimately granted a motion to substitute Douglas C. McNabb as counsel.
At the time of his appointment, McNabb was informed that although Duff-Smith's evidentiary hearing had been held, he could supplement the record as long as he did so before the magistrate judge issued his report to the district court. No particular time period was set.
Four months later McNabb realized that previous counsel had requested a transcript of the federal evidentiary hearings but that no transcript was ever produced. McNabb requested the transcript, the request was approved, and McNabb received the bulk of the transcript the last week of October 1990.
Meanwhile, the magistrate judge had finished his report which he filed on October 9, 1990. McNabb received a copy on October 17 and was given until October 30 to file objections. This objection deadline was later extended to November 30, 1990 and then to January 4, 1991.
In his objections to the magistrate judge's report, Duff-Smith requested that his substitute counsel be given additional...
To continue reading
Request your trial
-
Bolin v. Chappell
...and a secondary strategic goal of selecting jurors who had not seen the America's Most Wanted broadcast. See Duff-Smith v. Collins, 973 F.2d 1175, 1183 (5th Cir. 1992) (strategic choice not to pursue change of venue motion proper where counsel could have been satisfied with the panel as con......
-
Flores v. Johnson
...v. Collins, 21 F.3d 612, 621 (5th Cir.1994), cert. denied, 513 U.S. 1114, 115 S.Ct. 908, 130 L.Ed.2d 790 (1995); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir.1992), cert. denied, 507 U.S. 1056, 113 S.Ct. 1958, 123 L.Ed.2d 661 (1993); Black v. Collins, 962 F.2d 394, 401 (5th Cir.), ce......
-
Nichols v. Scott
...v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.), cert. denied, 484 U.S. 838, 108 S.Ct. 122, 98 L.Ed.2d 81 (1987); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir.1992) ("infirmities in state habeas proceedings do not constitute grounds for federal habeas relief"), cert. denied, --- U.S. ----......
-
Andrews v. Collins
...decisions in habeas proceedings ... [also] are left entirely to the sound discretion of the district court." Duff-Smith v. Collins, 973 F.2d 1175, 1180 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1958, 123 L.Ed.2d 661 (1993); see also 28 U.S.C. Sec. 2254, Rule 6 (governing the av......