Easter v. Estelle, 79-1082

Citation609 F.2d 756
Decision Date09 January 1980
Docket NumberNo. 79-1082,79-1082
PartiesWilmer Lane EASTER, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Robert M. Cohan (court-appointed), Dallas, Tex., for petitioner-appellant.

Mark White, Atty. Gen., Renea Hicks, Asst. Atty. Gen., Austin, Tex., P. E. George, Asst. Atty. Gen., Houston, Tex., for respondent-appellee.

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

Before THORNBERRY, GEE and HATCHETT, Circuit Judges.

THORNBERRY, Circuit Judge:

Petitioner William Lane Easter appeals from the denial of his petition for habeas corpus, 28 U.S.C. § 2254, in the United States District Court for the Southern District of Texas. Easter contends that the jury charge leading to his conviction was erroneous and that his current incarceration in the Texas state penal system is in violation of the Sixth and Fourteenth Amendments to the United States Constitution because of ineffective assistance of counsel received during the state court trial. Easter also claims that the district court erred by denying the petition for writ of habeas corpus without conducting an evidentiary hearing. These claims are without merit and we affirm the district court.

On October 18, 1974 Easter was convicted of murder under Texas Penal Code § 19.02(a)(3) and was sentenced to a prison term of life imprisonment. On April 28, 1976 the Texas Court of Criminal Appeals affirmed Easter's conviction. Easter v. State, 536 S.W.2d 223 (Tex.Cr.App.1976). Easter filed his petition for a writ of habeas corpus in state court on April 18, 1977, alleging eight constitutional errors in the prosecution and trial of his case. The petition was denied without a hearing on April 22, 1977 and this denial was affirmed by the Texas Court of Criminal Appeals. Easter then filed his petition in the district court on July 20, 1977, realleging the same eight constitutional errors complained of in his petition to the state courts. The district court denied Easter's petition on October 31, 1978.

Kimberly Easter, daughter of petitioner died on the morning of May 22, 1974 of acute subdural hematoma (a blood clot on the brain) probably resulting from a forcible blow or trauma. While there were no eyewitnesses to all of the events leading to Kimberly's death, the testimony revealed that Kimberly began to cry at about 6:30 p. m. on May 21, 1974 and Easter began "whopping" her and cursing at her. Easter then threw Kimberly in the air, allegedly in an attempt to make her laugh, but she fell and hit the floor. Later that night, surgery was performed to remove the blood clot from the brain, but the baby died two hours later in the recovery room. Easter was convicted of murder under the felony murder doctrine which is codified in § 19.02(a)(3) of the Texas Penal Code. He was represented by court appointed counsel.

Easter first complains of the jury charge given by the state district court judge in that (1) it failed to instruct the jury on the law of criminally negligent homicide and (2) it failed to instruct the jury on the correct culpability requirement for murder. Easter claims this deprived him of due process of law.

The first part of Easter's claim is without merit because he fails to state a federal claim upon which federal habeas corpus relief may be granted. It is not enough for Easter to contend that he was deprived of due process because the trial judge failed to charge the jury on the law of criminally negligent homicide since it is a lesser included offense. The jury was correctly charged on the law of murder as stated in § 19.02(a)(3). The crime of criminally negligent homicide, as defined in § 19.07 of the Texas Penal Code, is a lesser included offense of the crime of murder. Tex.Penal Code Ann. tit. 5, § 19.01(b) (Vernon, 1974). This court has previously held that a state trial court judge's failure to instruct on a lesser included offense is not a federal constitutional matter. Bonner v. Henderson, 517 F.2d 135 (5 Cir. 1975); Grech v. Wainwright, 492 F.2d 747 (5 Cir. 1974); Alligood v. Wainwright, 440 F.2d 642 (5 Cir. 1971). Therefore, we must find that Easter failed to state a federal claim upon which federal habeas corpus relief may be granted.

As to the second claim that the state trial court judge denied due process to Easter by failing to instruct the jury on the correct culpability requirement for murder under § 19.02(a)(3), this is not a question that we can decide. This issue was never raised in any of the state court proceedings or in the federal district court. The issue was first raised in this court. Therefore, Easter has failed to exhaust his remedies. Easter cannot merely object to one aspect of the jury charge and assume that all claims against the charge have been exhausted. Generally, contentions urged for the first time before this court are not properly before us merely because they are coupled with an appeal from a denial of federal habeas corpus relief. See generally Blankenship v. Estelle, 592 F.2d 270 (5 Cir. 1979); Tifford v. Wainwright, 592 F.2d 233 (5 Cir. 1979); Bryant v. Elliott, 472 F.2d 572 (5 Cir. 1973); Young v. Wainwright, 326 F.2d 255 (5 Cir. 1964). This court has recently recognized some exceptions to the general "exhaustion" rule, but these cases do not apply to our current situation. Galtieri v. Wainwright, 582 F.2d 348 (5 Cir. 1978) (en banc); Messelt v. Alabama, 595 F.2d 247 (5 Cir. 1979). Therefore, Easter cannot bring this claim in a federal court without having exhausted it in the state court of Texas.

Easter's second contention states that trial counsel was ineffective because counsel (1) neglected his obligation to prepare for trial, (2) waived Easter's right to be tried by a jury chosen without racial discrimination, (3) failed to object to highly prejudicial misconduct by the prosecutor at trial, and (4) permitted his client to be convicted of murder without the requisite level of culpability. Our decision must be based on the standard adopted by this court in MacKenna v. Ellis, 280 F.2d 592 (5 Cir. 1960), Modified, 289 F.2d 928, Cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961), which stated that a party must be represented by "counsel reasonably likely to render and rendering reasonably effective assistance." In light of this standard, Easter's claim is without merit. See also Herring v. Estelle, 491 F.2d 125 (5 Cir. 1974).

Easter initially claims that his counsel neglected his obligation to prepare for trial in that he only met with Easter twice before trial and because counsel failed to interview certain witnesses and failed to adequately prepare for the trial. This court has held that the brevity of time spent in consultation, without more, does not establish that counsel was ineffective. Carbo v. United States, 581 F.2d 91 (5 Cir. 1978); Woodard v. Beto, 447 F.2d 103 (5 Cir.), Cert. denied, 404 U.S. 957, 92 S.Ct. 325, 30 L.Ed.2d 275 (1971). Therefore, it is not enough to merely show that counsel only met with Easter twice before trial as long as counsel devoted sufficient time to insure an adequate defense and to become thoroughly familiar with the facts of the case and the law applicable to the case. The record reveals that counsel was so prepared. Counsel conducted an adequate pre-trial investigation in accordance with the standard adopted by this court in MacKenna. While counsel failed to interview and subpoena certain witnesses, this constituted trial strategy since to do so would have opened the door to introduction of Easter's prior conviction for child molestation. Therefore, Easter's claim does not rise to a constitutional level. Cowens v. Wainwright, 373 F.2d 34 (5 Cir.), Cert. denied, 387 U.S. 913, 87 S.Ct. 1705, 18 L.Ed.2d 637 (1967).

Easter also claims that counsel waived appellant's right to be tried by a jury chosen without racial discrimination. Easter relies on the fact that he was convicted by an all white jury that included only one black person on the panel, even though blacks constituted a significantly higher proportion of the community's population. Easter relies on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), where the Supreme Court recognized that constitutional rights may be infringed by a state's deliberate and continued exclusion of blacks from a jury through the use of peremptory challenges. But a defendant bears a heavy burden when he seeks to show systematic discrimination of constitutionally significant proportions. It is not enough to base such a constitutional claim on the facts of the single case presented to this court. United States v. McLaurin, 557 F.2d 1064 (5 Cir. 1977), Cert. denied, 434 U.S. 1020, 98 S.Ct. 743, 54 L.Ed.2d 767 (1978). In this case, Easter offered no proof of any continued and systematic exclusion of blacks from petit juries through the government's use of peremptory challenges. He offers no statistics and states no facts that would support even an inference that the government's conduct constituted a constitutional violation. Therefore, there was nothing for counsel to object to. Easter not only failed to show a constitutional violation but also was unable to show that counsel's advice was incompetent. Cf. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602...

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