Fearance v. Scott

• Citation: 56 F.3d 633
• Decision Date: 18 June 1995
• Docket Number: No. 95-10527,95-10527
• Parties: John FEARANCE, Jr., Petitioner-Appellant, v. Wayne SCOTT, Director Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 633

56 F.3d 633

John FEARANCE, Jr., Petitioner-Appellant, v. Wayne SCOTT, Director Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 95-10527.

United States Court of Appeals,

Fifth Circuit.

June 18, 1995.

J. Thomas Sullivan, Little Rock, AR, J. Blake Withrow, Dallas, TX, for petitioner-appellant.

Dan Morales, Atty. Gen., Gena A. Blount, Asst. Atty. Gen., Austin, TX, for respondent-appellee.

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

On Application for Certificate of Probable Cause and Motion

for Stay of Execution.

Before JONES, DUHE and WIENER, Circuit Judges.

EDITH H. JONES, Circuit Judge.

Appellant Fearance has been tried and sentenced to death twice for stabbing Larry Faircloth nineteen times and causing him to bleed to death in his own bedroom, during Fearance's aborted burglary. This court rejected Fearance's first federal habeas petition and denied a certificate of probable cause to appeal only three months ago. Following his third collateral trip through the state courts, Fearance filed for Sec. 2254 habeas relief in the federal district court for the second time. Fearance has now reemerged before this court, three working days before his scheduled execution, again searching for a stay of execution and application for certificate of probable cause to appeal. Concluding that he has not alleged grounds for relief that are reasonably debatable among jurists, Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3395 n. 4, 77 L.Ed.2d 1090 (1983), because his claims are clearly foreclosed, we must deny CPC and decline to issue a last-minute stay of execution.

Fundamentally, Fearance asserts two new grounds for relief that were not conclusively rejected by this court in Fearance v. Scott, No. 94-10686, 51 F.3d 1041 (5th Cir. March 21, 1995) (Fearance I ). First, he argues that the State of Texas would violate the Eighth Amendment's prohibition of cruel and unusual punishment by executing him after "forc[ing] him to endure over a decade on death row." This is a claim that could and should have been asserted in his first federal petition. Second, he raises a series of challenges related to his mental competency for execution. We hold that Fearance's previous litigation strategy has barred most of these claims from review on the merits, and that he is presently mentally competent to be executed.

I. Unconstitutional Delay

In his third state habeas petition filed May 25, 1995, Fearance first raised an Eighth Amendment based challenge to the "extended" delay of Texas in executing his sentence of death. He asserts that his claim that Texas has forfeited its right to execute him because of the "inordinate delay" between his first trial in 1978 and final issuance of the Court of Criminal Appeals mandate in July, 1989 derives from the memorandum opinion issued by Justice Stevens in the Supreme Court's denial of certiorari in Lackey v. Texas, --- U.S. ----, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995). He further buttresses the support for this proposition with additional historical research and by extrapolating from the Supreme Court's order granting a stay and vacating this court's opinion in Lackey v. Scott, 52 F.3d 98 (5th Cir.1995). See Lackey v. Scott, --- U.S. ----, 115 S.Ct. 1818, 131 L.Ed.2d 741 (1995). ¹

Fearance first petitioned the federal courts for relief in 1992. In that proceeding he did not assert a claim that the Eighth Amendment barred recourse to the death penalty after a defendant's extended incarceration on death row. Accordingly, the State of Texas urges that the federal abuse-of-the-writ doctrine precludes review of the merits of this claim.

Rule 9(b) of the Rules Governing Sec. 2254 Habeas Proceedings authorizes a federal court to dismiss a serial habeas petition if failure to assert new grounds in a prior petition amounted to an abuse of the writ. McCleskey v. Zant, 499 U.S. 467, 490, 111 S.Ct. 1454, 1468, 113 L.Ed.2d 517 (1991), held that "the same standard used to determine whether to excuse state procedural defaults should govern the determination of inexcusable neglect in the abuse-of-the-writ context." Hence "a claim in a serial habeas petition must be dismissed as an abuse of the writ unless the petitioner demonstrates that there was 'cause' not to have raised the claim in a previous federal habeas petition, and 'prejudice' if the court fails to consider the new claim." James v. Cain, 50 F.3d 1327, 1331 (5th Cir.1995). ² In Selvage v. Collins, 975 F.2d 131, 133 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2445, 124 L.Ed.2d 663 (1993), we concluded that a failure to raise a claim in an earlier habeas petition may not be excused for cause "if the claim was reasonably available" at the time of the first petition. We explicitly highlighted the Supreme Court's admonition in Engle v. Isaac, 456 U.S. 107, 129-130, 102 S.Ct. 1558, 1572-1573, 71 L.Ed.2d 783 (1982), that claims are "reasonably available" even where their assertion would in all likelihood be "futile." Thus, "an omission of a claim [in an earlier habeas petition] may be excused for cause only if the question was so novel that it lacked a reasonable basis in existing law." James, 50 F.3d at 1331 (quoting Selvage, 975 F.2d at 135) (alterations in original). A "reasonable basis" demands only that counsel has the tools "to formulate a constitutional question." Id. (citation omitted). By definition, therefore, if "other defense counsel have perceived and litigated [a] claim", cause for a serial petition is not possible. Engle, 456 U.S. at 134, 102 S.Ct. at 1575.

Although Fearance attempts to link the advent of a "Lackey"-- claim to the date of Justice Stevens's recent memorandum, this historical revisionism is transparently erroneous. "[W]hile Justice Stevens' memorandum in Lackey has given prominence to the argument that delay in carrying out the death sentence constitutes cruel and unusual punishment, the legal theory underlying the claim is not new." McKenzie v. Day, 57 F.3d 1461, 1465 (9th Cir.1995), opinion adopted, 57 F.3d 1493 (9th Cir.1995) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 1840, 131 L.Ed.2d 846 (1995); Turner v. Jabe, 1995 WL 324034, at * 5, 1995 U.S.App. LEXIS 12522, at * 6-* 7 (4th Cir. May 24, 1995).

Indeed, the Ninth Circuit explicitly rejected Fearance's precise claim on the merits in 1990. ³ Richmond v. Lewis, 948 F.2d 1473 (9th Cir.1990). ⁴ As Engle explained, "Even those decisions rejecting the defendant's claim, of course, show that the issue had been perceived by other defendants and that it was a live one in the courts at the time." Engle, 456 U.S. at 133 n. 41, 102 S.Ct. at 1574 n. 41. In fact, this argument had been raised decades before Fearance's 1992 federal petition. See Chessman v. Dickson, 275 F.2d 604, 607 (9th Cir.1960) (application for CPC "because [petitioner] has been confined in a death cell for eleven and one-half years, thus he has been subjected to cruel and unusual punishment").

Moreover, Fearance's attempt to defend Justice Stevens's comment proves too much. In over 20 pages of briefing he endeavors to trace the merits of a Lackey-claim back to the views of this nation's founding fathers and the pre-revolutionary English common law. ⁵ For contemporary support, he directs attention to the British Privy Council's landmark decision in Pratt v. Attorney General for Jamaica, 2A.C.1, 4A11E.R.769 (P.C.1993) (en banc), which held that a delay between petitioner's deaths sentence and his execution violated the Jamaican constitution. We agree with the Fourth Circuit's conclusion that if Fearance "wishes to cite the Privy Council he must acknowledge that in 1983 the Privy Council rejected, over a dissent, a constitutional attack based on the delay between a death sentence and execution." Turner, 1995 WL 324034, at * 3, 1995 U.S. LEXIS 12522, at * 9. This alone suffices to preclude "cause" for Fearance's omission of a cruel and unusual punishment claim from his first federal habeas petition. See Delo v. Stokes, 495 U.S. 320, 322, 110 S.Ct. 1880, 1881-1882, 109 L.Ed.2d 325 (1990) (per curiam) (prior dissenting opinions discussing the claim refuted petitioner's argument that his claim was novel). ⁶

Because Fearance is unable to establish cause, his abuse of the writ will be excused only if he can show that federal review of his claim is necessary to prevent a fundamental miscarriage of justice. We reject--as have three other circuits ⁷--Fearance's attempt to expand "the narrow scope of the fundamental miscarriage of justice exception." Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). The Supreme Court has applied the "actual innocence" exception only where a petitioner claims to be actually innocent of the crime for which he was convicted, Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-2650, 91 L.Ed.2d 397 (1986), or where a petitioner claims to be actually innocent of his death sentence. Sawyer, --- U.S. at ---- - ----, 112 S.Ct. at 2519-25.

Citing Sawyer, Fearance argues that he is now actually innocent of the death penalty, or technically that he is "constitutionally ineligible " as a result of the state's delay in executing his sentence. The special Sawyer-version of the "miscarriage of justice" exception is limited to assertions of errors of constitutional magnitude occurring at sentencing. The language of Sawyer demanding the petitioner "show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found him eligible for the death penalty under applicable state law," --- U.S. at ----, 112 S.Ct. at 2523, cannot logically be exported to other "defects" in a death sentence. Fearance cannot identify any error at his sentencing--and most assuredly is not "actually innocent" of capital murder.

Furthermore, even assuming a valid Lackey-claim is conceptually possible, ⁸ the execution of a...