Graham v. Johnson

• Citation: 94 F.3d 958
• Decision Date: 28 August 1996
• Docket Number: No. 93-2614,93-2614
• Parties: Gary GRAHAM, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 958

94 F.3d 958

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

No. 93-2614.

United States Court of Appeals Fifth Circuit.

Aug. 28, 1996.

Dick Burr, NAACP Legal Defense Fund, New York City, Mandy Welch, Texas Resource Center, Houston, TX, for Appellant.

Charles A. Palmer, Dan Morales, Atty. Gen., Robert S. Walt, Asst. Atty. Gen., Austin, Texas, for Appellee.

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

Before KING, GARWOOD and JOLLY, Circuit Judges.

PER CURIAM:

Petitioner-appellant Gary Graham (Graham), convicted in Texas court of the capital murder during robbery of Bobby Lambert and sentenced to death, appeals the district court's denial of his third habeas petition under 28 U.S.C. § 2254. ¹ We conclude that Graham has not adequately exhausted his state remedies as required by section 2254(b) & (c), and, despite the state's having waived exhaustion below, we determine, in the exercise of our discretion, not to accept the waiver, and we accordingly vacate the district court's judgment and remand the case to the district court with directions to dismiss the petition without prejudice for failure to exhaust state remedies.

Context Facts and Procedural History

We generally summarize the background and procedural history of this case as follows.

About 9:30 p.m. on May 13, 1981, in the parking lot of a Safeway Food Store in Houston, Texas, Bobby Lambert, a customer at the store, was shot and killed by a lone black male who was attempting to rob him. The perpetrator promptly left the scene without being apprehended. Following his arrest for another offense about a week later, Graham, then seventeen years old, was charged with the capital murder of Lambert, and was convicted and sentenced to death in October 1981 following a jury trial in the 182nd Judicial District of Harris County, Texas. ² At the guilt-innocence stage of the trial, among other evidence presented by the state, Wilma Amos, Daniel Grady (since deceased), and Bernadine Skillern (now Benton) testified to the shooting incident. However, Skillern was the only trial witness to identify Graham as the shooter. The other witnesses did not testify that Graham was not or did not resemble the perpetrator, but merely stated they did not get a good enough look at, or sufficiently recall, the perpetrator's face to make an identification. Skillern testified she identified Graham in a May 26 photographic display and in a May 27 police station "line-up," and she identified him in open court. The defense presented no evidence at the guilt-innocence stage. However, defense counsel attacked Skillern's identification in vigorous cross-examination of her, ³ and in argument emphasized the failure of the other witnesses to identify Graham and urged that the evidence failed to show Graham was the perpetrator. At the punishment stage, the state presented evidence that during the period May 14 through May 20, 1981, Graham robbed some thirteen different victims at nine different locations, in each instance leveling either a pistol or a sawed-off shotgun on the victim. Two of the victims were pistol-whipped, one being shot in the neck; a sixty-four-year-old male victim was struck with the vehicle Graham was stealing from him; and a fifty-seven-year-old female victim was kidnaped and raped. There was also testimony that Graham's reputation in the community for being a peaceful and law-abiding citizen was bad. The only defense evidence was the testimony of Graham's stepfather and grandmother, generally as to his good and nonviolent character.

On his direct appeal, Graham's conviction and sentence were affirmed by the Texas Court of Criminal Appeals in an unpublished per curiam opinion. Graham v. State, 671 S.W.2d 529 (Tex.Crim.App.1984) (table). Certiorari review in the United States Supreme Court was not sought.

Graham, represented by new counsel, filed a state habeas petition in July 1987, contending, inter alia, that he was incompetent to be executed, that the Texas capital punishment scheme was constitutionally defective for various reasons and did not allow the jury to adequately consider mitigating evidence, including his youth, and that he received ineffective assistance of counsel. Counsel was alleged to be ineffective in numerous respects, including the failure to adequately investigate and to interview and call alibi witnesses, and not allowing Graham to testify. A competency examination was conducted, and an evidentiary hearing was held in January 1988 before state district judge Shipley (who had not presided at Graham's trial) at which Graham and other witnesses, including three alibi witnesses, William Chambers, Mary Brown, and Dorothy Shield, testified, as did also Graham's trial counsel, Ronald Mock and Chester Thornton. On February 9, 1988, the state trial habeas court entered findings of fact and conclusions of law in all respects adverse to Graham, finding, among other things, that Graham was not incompetent, that his counsel advised him not to testify but told him he had a right to do so and that the decision was his, that Graham never told counsel he wanted to testify, and that (inter alia ):

"4. Prior to trial, counsel [who had been appointed to represent Graham June 12, 1981] reviewed the information in the State's file several times.

5. On numerous occasions prior to trial, counsel met with the applicant and attempted to discuss the facts of the case with him. The applicant stated only that he did not commit the robbery-murder and that he had spent the evening with a girlfriend whose name, appearance, and address the applicant could not remember.

6. Although defense counsel made numerous inquiries of applicant, he did not give his defense counsel the names of any potential alibi witnesses, nor did the applicant tell his counsel where he had been and what he had been doing on the night of the instant offense, May 13, 1981.

7. No person ever presented himself to defense counsel as an alibi witness, either before, during or after trial.

8. Specifically, the applicant did not furnish his counsel with the names or addresses of Dorothy Shield, Williams Chambers, Mary Brown, or Lorain [sic] Johnson as potential alibi witnesses.

9. This court finds that the testimony of William Chambers, Mary Brown and Dinah Miller concerning Gary Graham's whereabouts on May 13, 1981 is not credible testimony.

10. Gary Graham was aware that an investigator was working with defense counsel in connection with the defense of his case.

11. Counsel for applicant hired an investigator, Merv West, who assisted them in investigating and interviewing possible defense witnesses."

The state habeas trial court concluded that in all respects Graham had received effective assistance of counsel. The Court of Criminal Appeals, in an unpublished per curiam order with reasons issued February 19, 1988, denied habeas relief, essentially on the basis of the habeas trial court's findings.

Shortly thereafter, Graham, through his new counsel, filed his first federal habeas petition in the district court below. He asserted, among other things, that his age at the time of the offense constitutionally prevented his execution, that he was not mentally competent to be executed, that the Texas capital sentencing scheme did not allow adequate consideration of his youth and other mitigating circumstances, and that his counsel was ineffective in diverse respects including the following, viz: failing to conduct adequate pretrial investigation, failing to interview all the witnesses, failing to adequately cross-examine Skillern, failing to bring forth alibi witnesses, failing to develop a proper trial strategy, failing to call more than two witnesses at sentencing, and failing to allow Graham to testify. The district court denied relief and we denied CPC. Graham v. Lynaugh, 854 F.2d 715 (5th Cir.1988). We specifically reviewed the allegations concerning ineffective assistance of counsel and the state habeas court findings in respect thereto, id. at 721-22, and concluded "that Graham has failed to overcome the presumption that the state court's findings were correct." Id. at 722. The Supreme Court in a per curiam order granted certiorari, vacated our judgment and remanded the case to this Court "for further consideration in light of Penry v. Lynaugh," 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Graham v. Lynaugh, 492 U.S. 915, 109 S.Ct. 3237, 106 L.Ed.2d 585 (1989). On remand, the same panel of this Court, in part I of its opinion on remand, reinstated all of its 1988 opinion except section IIB thereof (854 F.2d at 718-720) dealing with whether the Texas capital sentencing scheme allowed adequate consideration of mitigating evidence, particularly youth. Graham v. Collins, 896 F.2d 893, 894 (5th Cir.1990). The 1990 panel decision went on to hold that the Texas capital sentencing scheme, contrary to Penry, did not allow adequate consideration of Graham's youth, and accordingly vacated his death sentence. Id. at 898. We then took the case en banc and ultimately affirmed the denial of habeas relief. Graham v. Collins, 950 F.2d 1009 (5th Cir.1992) (en banc). The en banc Court specifically reinstated part I of the 1990 panel opinion (896 F.2d at 894), thus reinstating all of the 1988 panel opinion except part IIB thereof (854 F.2d at 718-720). Id., 950 F.2d at 1013 n. 4. The en banc Court went on to reject Graham's contention that the Texas capital sentencing scheme did not allow adequate consideration of his mitigating evidence, particularly his youth. Id. Accordingly, we reinstated our prior mandate affirming the district court's dismissal of Graham's habeas petition. Id. at 1034. The United States Supreme Court subsequently affirmed, addressing only the youth-Penry issue and holding that any claim that the Texas capital sentencing scheme did not...