Graham v. Lynaugh

• Decision Date: 31 August 1988
• Docket Number: No. 88-2168,88-2168
• Citation: 854 F.2d 715
• Parties: Gary GRAHAM, Petitioner-Appellant, v. James LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 715

854 F.2d 715

Gary GRAHAM, Petitioner-Appellant, v. James LYNAUGH, Director, Texas Department of Corrections Respondent-Appellee.

No. 88-2168.

United States Court of Appeals Fifth Circuit.

Aug. 31, 1988.

Douglas M. O'Brien, Houston, Tex., for petitioner-appellant.

Robert S. Walt, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before REAVLEY, KING and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Gary Graham, seven years after his conviction in the Texas state courts for capital murder, is before us for the first time and petitions this court for a certificate of probable cause, seeking a stay of his execution and habeas relief under 28 U.S.C. Sec. 2254. We granted a temporary stay of his execution, received briefs, and heard argument so that we could consider his petition more closely. After a thorough review, we are convinced that Graham's contentions are meritless and that he has failed to make any showing of the denial of a federal right. We therefore deny Graham's petition for certificate of probable cause. Nevertheless, in order that the Supreme Court may have an opportunity to consider this case, the temporary stay will not be lifted until 12:01 a.m., September 30, 1988. ¹

I

This habeas corpus petition arises from Graham's conviction in 1981 in Texas state court for the felony offense of capital murder. Graham, who was seventeen at the time of the crime, was represented by two attorneys who developed a defense around mistaken identity. Counsel advised Graham against testifying, and he followed this advice. No alibi witnesses were called, and only two mitigation witnesses testified during the sentencing phase. Graham was found guilty and sentenced to death.

Graham appealed his conviction to the Texas Court of Criminal Appeals. He argued that the trial court improperly excluded five prospective jurors and denied a limiting instruction regarding extraneous offenses. On June 12, 1984, in an unpublished per curiam opinion, the court of criminal appeals affirmed the conviction. It was not until June 26, 1987, however, that the trial court set the execution date. Execution was set for July 30, 1987.

Graham then began these efforts for postconviction relief when he petitioned the Texas state district court. Because the petition was not filed until July 13, 1987, less than three weeks before the scheduled date, execution was postponed to allow time for judicial review. After the district court conducted an evidentiary hearing on January 8, 1988, the court entered findings of fact and conclusions of law recommending denial of relief. The Texas Court of Criminal Appeals then denied relief on February 19, 1988. Graham's execution was then rescheduled for February 25.

Graham filed this petition for a writ of habeas corpus and stay of execution in federal district court on February 23, 1988. The district court found that all relevant facts had been developed by the state court and adopted the state court's factual findings. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). After reviewing Graham's legal contentions, the district court, on the eve of Graham's scheduled execution, determined that his claims were meritless, denied relief and denied a certificate of probable cause.

Graham immediately appealed and asked this court to grant his petition for a certificate of probable cause. We issued an order temporarily staying Graham's execution so that we might have more time to examine his request. See, e.g., Henry v. Wainwright, 743 F.2d 761, 762 (11th Cir.1984). After submission of briefs and oral argument, we now address the questions before us.

II

The standard for granting a certificate of probable cause "requires petitioner to make a 'substantial showing of the denial of [a] federal right.' " Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (quoting Stewart v. Beto, 454 F.2d 268, 270, n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972)). In the light of this test, we turn to the issues before us.

A.

First, Graham asserts that his death sentence violates the eighth amendment because he was seventeen at the time of the offense. Graham contends that, despite Texas state court and Fifth Circuit precedent to the contrary, this issue is meritorious because recently the Supreme Court has called into serious question the application of the death penalty to teenagers. Thompson v. Oklahoma, --- U.S. ----, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (plurality opinion). Upon reviewing the Thompson decision, we find that it offers Graham no help. In a plurality opinion, Justice Stevens concluded that the eighth amendment prohibits the execution of an individual who is under sixteen years of age at the time the crime was committed. Id. at ----, 108 S.Ct. at 2700. Justice Stevens based the decision upon what he considered to be the current "evolving standards of decency." Id. at ----, 108 S.Ct. at 2691. The opinion examined the capital punishment policies of all the states and found a consensus that imposition of capital punishment upon someone who is under sixteen years of age is "now generally abhorrent to the conscience of the community." NE>Id. at ----, 108 S.Ct. at 2697.

Justice O'Connor, although concurring in the judgment, declined to find expressly that a national consensus existed that prohibited the execution of anyone under the age of sixteen. Id. at ----, 108 S.Ct. at 2704-05. Hence she concluded only that "petitioner and others who were below the age of sixteen at the time of their offense may not be executed under the authority of a capital punishment statute that specifies no minimum age at which the commission of a capital crime can lead to the offender's execution." Id. at ----, 108 S.Ct. at 2711.

Neither Justice Stevens' nor Justice O'Connor's opinion bears any suggestion that an individual of Graham's age cannot be sentenced to death. The evidence relied on in Thompson simply reflected a likely consensus among the states that execution of an individual under the age of sixteen was cruel and unusual punishment. Neither the holding nor the rationale of Thompson supports an argument that the eighth amendment bars the death penalty against persons who are sixteen or older. See --- U.S. at ---- - ----, 108 S.Ct. at 2691-96. Thus, Thompson does not aid Graham.

Graham fairs no better under Fifth Circuit precedent. This court has specifically observed that "[n]o court has ruled that in all cases and under all circumstances, the execution of those who commit capital offenses while under the age of eighteen constitutes cruel and unusual punishment." Prejean v. Blackburn, 743 F.2d 1091, 1098 (5th Cir.1984). Texas state law has similarly held that the capital sentencing of an individual who is less than eighteen years old is not unconstitutional. Cannon v. State, 691 S.W.2d 664, 678 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986); Ferguson v. State, 573 S.W.2d 516, 525 (Tex.Crim.App.1978), cert. denied, 442 U.S. 934, 99 S.Ct. 2870, 61 L.Ed.2d 304 (1979). There are no special circumstances in Graham's case that indicate that he should be treated any differently from any other seventeen-year-old person who commits the crime of capital murder. We therefore must conclude that Graham's first contention has no constitutional basis. ²

B.

Graham challenges the Texas death penalty statute, Tex. Code Crim.Proc.Ann. art. 37.01 (Vernon 1981 & Supp.1987), under the fifth, sixth, eighth and fourteenth amendments of the United States Constitution and corresponding Texas provisions. He objects to the statutory sentencing procedure that determines punishment by allowing the jury only to answer specific questions. ³ Tex.Crim.Pro.Code Ann. art. 37.071(b) (Vernon 1981 & Supp.1987). Under the Texas scheme, only two special issues were submitted to the jury: (1) whether the crime was committed deliberately, and (2) whether the defendant is likely to pose a future danger to society. Graham alleges that these questions do not permit the jury to weigh mitigating circumstances when formulating their answers. ⁴

Graham's attack upon the Texas statutory sentencing scheme raises issues that are similar to those contained in Franklin v. Lynaugh, which, at the time we granted a temporary stay, was pending before the Supreme Court, 823 F.2d 98 (5th Cir.), cert. granted, --- U.S. ----, 108 S.Ct. 221, 98 L.Ed.2d 180 (1987). The Court granted certiorari on the issue of "[w]hether the jury must be instructed on the effect of mitigating evidence under the Texas capital punishment scheme." The Franklin petitioner had requested five jury instructions that would have informed the jury that they should consider all mitigating evidence in answering the Texas statutory questions. --- U.S. ----, ----, ----, 108 S.Ct. 2320, 2324, 2325, 101 L.Ed.2d 155 ((1988). The requested instructions further stated that the jury could answer the statutory questions in the negative if they found any evidence mitigating against the death penalty. --- U.S. at ----, ----, 108 S.Ct. at 2324, 2325. The trial court refused these special jury instructions and Franklin asserted that because the Texas sentencing scheme did not allow the jury to consider the full range of the mitigating evidence, his eighth amendment rights were violated. Id. ⁵

On June 22, 1988, the court issued its plurality opinion upholding the Texas statute. Franklin v. Lynaugh, --- U.S. ---- 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (plurality opinion). Writing for the plurality, Justice White concluded that the trial court did not violate the eighth amendment by refusing to grant Franklin's requested instructions. --- U.S. at ----, 108 S.Ct. at 2331-32. He based this holding on the conclusion that...