Ellis v. Lynaugh

• Decision Date: 30 May 1989
• Docket Number: No. 88-2829,88-2829
• Citation: 873 F.2d 830
• Parties: Edward Anthony ELLIS, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 830

873 F.2d 830

Edward Anthony ELLIS, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections Respondent-Appellee.

No. 88-2829.

United States Court of Appeals Fifth Circuit.

May 30, 1989.

Donald F. Killingsworth, Tyler, Tex., for petitioner-appellant.

Bill Zapalac, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before REAVLEY, JOHNSON and DAVIS, Circuit Judges.

REAVLEY, Circuit Judge:

Edward Anthony Ellis appeals from the federal district court's denial of habeas corpus relief from the death sentence imposed by a Texas court. We affirm.

I. Background

In March 1983, a grand jury in Harris County returned an indictment charging Edward Ellis with the murder by asphyxiation of Bertie Elizabeth Eakins while he was in the course of committing burglary. A jury found Ellis guilty as charged and returned affirmative answers to the special punishment issues submitted pursuant to Tex.Code Crim.Proc. art. 37.071 (Vernon Supp.1989). The trial court, as required by law, sentenced Ellis to death by lethal injection. The Texas Court of Criminal Appeals affirmed. Ellis v. State, 726 S.W.2d 39 (Tex.Crim.App.1986), cert. denied, 480 U.S. 926, 107 S.Ct. 1388, 94 L.Ed.2d 702 (1987). After the state courts denied his application for writ of habeas corpus, Ellis sought relief in federal court. In July 1988, the district court denied Ellis's petition for writ of habeas corpus but granted a certificate of probable cause.

On appeal Ellis alleges several grounds of error: (1) that the trial court improperly excluded two venire members in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); (2) that the evidence was insufficient to prove the allegations in the indictment; (3) that the trial court erred in failing to define the term "deliberately" for the jury; (4) that Ellis was denied a fair and impartial trial, due course of law, due process and equal protection of law and his right to be free of cruel and unusual punishment by the systematic exclusion of Hispanics from the grand juries in Harris County, Texas and from service as grand jury foremen; (5) that he was denied the effective assistance of counsel at trial and on appeal; and (6) that the district court erred in failing to conduct a hearing on the issues of ineffective assistance of counsel and systematic exclusion of Hispanics from grand jury service. Because we conclude that each of these claims is either procedurally barred or without merit, we affirm the district court's denial of the writ.

II. The Witherspoon Issue

Ellis contends that two prospective jurors, Holstead and Bradshaw, were excluded improperly from serving on the jury on the basis of their opposition to the death penalty in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) and that Bradshaw's exclusion was not harmless error as found by the district court.

In Witherspoon, the Supreme Court held that a state violates a capital defendant's rights under the Sixth and Fourteenth Amendments when it excuses for cause all venire members who express conscientious objections to capital punishment. The Court did recognize, however, that a state has a legitimate interest in excluding those potential jurors whose opposition to capital punishment would preclude their impartiality and thereby frustrate administration of a state's death penalty scheme. In attempting to strike an appropriate balance between these two competing interests, the Court wrote that venire members may be excluded for cause if they make it

unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.

391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in original).

The Supreme Court reexamined the Witherspoon standard in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). In deciding whether certain potential jurors had been excluded properly pursuant to the Texas statute at issue, the Court discussed its prior opinions, including Witherspoon, and concluded that [t]his line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.

448 U.S. at 45, 100 S.Ct. at 2526 (emphasis added).

Recognizing that the already difficult task of distinguishing between prospective jurors whose opposition to capital punishment would impair their impartiality and those whose opposition could be set aside effectively had been made more difficult "by the fact that the standard applied in Adams differ[ed] markedly from the language of [Witherspoon ]," the Supreme Court undertook to clarify the issue in Wainwright v. Witt, 469 U.S. 412, 421, 105 S.Ct. 844, 850, 83 L.Ed.2d 841 (1985). In so doing, the Court reaffirmed the above quoted standard from Adams as the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment. The Court noted that the Adams standard not only dispensed with Witherspoon 's reference to "automatic" decisionmaking but also did not require that a juror's bias be proved with "unmistakable clarity." Id. at 424, 105 S.Ct. at 852.

This is because determination of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.... [T]his is why deference must be paid to the trial judge who sees and hears the juror.

Id. at 424-26, 105 S.Ct. 852-53 (footnote omitted). Thus, in a proceeding under 28 U.S.C. Sec. 2254, the trial court's factual determination that a potential juror is disqualified is entitled to a presumption of correctness, absent one of the specifically enumerated exceptions contained in 28 U.S.C. Sec. 2254(d). Id. at 429, 105 S.Ct. at 855. With this in mind, we turn to those claims before us.

A. Prospective Juror Holstead

Ellis claims generally in his brief that Holstead was excluded improperly but points to nothing specific in the voir dire to support his contention. We agree that Holstead's exclusion was proper for the reasons given in the district court's opinion.

B. Prospective Juror Bradshaw

Ellis argues that, because Bradshaw's answers to defense counsel's questions showed that he was qualified to serve on the jury under Witherspoon and Adams, the trial court's exclusion of him for cause was erroneous. Ellis asserts that the trial court set out to disqualify Bradshaw by taking over the voir dire and pointing out ways in which he could avoid jury service and that this conduct deprived the defendant of a full and fair hearing on the matter of juror qualification and stripped the trial court's findings of the presumption of correctness to which they normally would be entitled.

The evaluation of this contention requires study of the entire voir dire in which Bradshaw was involved. That begins with the introductory remarks the trial court made to the group of venire members before individual voir dire began. The court explained that those persons selected to serve on the jury would have to take an oath to render their verdict according to the law and the evidence. He emphasized that if any of the prospective jurors disagreed with some aspect of the law to the extent that they could not take the oath to follow the law, they would not be qualified to serve. The court made it plain, though, that mere disagreement with the law did not automatically disqualify one from serving as a juror. Even if a person disagreed with the law as it was explained, "if you can set that aside and still be fair and impartial then you may still be qualified to be a juror." After explaining that taking the juror's oath was a very serious matter and that knowingly violating the oath would subject a person to severe penalties, the court made the following statements:

So we are not going to make anybody, force anyone to take an oath that they can't follow. You see what I am saying? So that's why we are going back to this thing if you disagree with the law, if you disagree with the law of the indictment to the extent and degree that it is going to destroy your conscience or soul, we are not going to make you take the oath.

The trial court began Bradshaw's individual voir dire by asking if he had religious, moral or conscientious scruples against the infliction of death as a punishment for a crime in a proper case. Bradshaw answered "yes." The prosecutor then took over the questioning; he first asked Bradshaw if he would put in his own words his feelings about the death penalty:

A. The way I feel about it--say, if he did take someone's...