Holland v. Collins

• Citation: 950 F.2d 169
• Decision Date: 17 December 1991
• Docket Number: No. 91-5093,91-5093
• Parties: David Lee HOLLAND, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 169

950 F.2d 169

David Lee HOLLAND, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 91-5093.

United States Court of Appeals, Fifth Circuit.

Dec. 17, 1991.

David Chamberlain, Lea & Chamberlain, Austin, Tex. (Court-appointed), for petitioner-appellant.

Dan Morales, Atty. Gen., and William C. Zapalac, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Texas; Sam B. Hall, Jr., Judge.

Before POLITZ, KING and SMITH, Circuit Judges.

BY THE COURT:

Before the court is an application for a certificate of probable cause and stay of execution in David Lee Holland's first federal habeas petition. The stay of execution is GRANTED pending this court's en banc decision in Graham v. Collins, No. 88-2168 on the docket of this court.

JERRY E. SMITH, Circuit Judge, dissenting:

I respectfully dissent from the decision of my able and conscientious colleagues to grant a stay of execution in this matter. The majority has shown no basis for a constitutional violation or for the interference with the state criminal process that is implicated by a stay of execution.

I.

Specifically, the majority has failed to show, or even to address, whether the standards for a stay of execution have been satisfied in this case. It is well established that a stay of execution may be granted only if the following questions can be answered in the affirmative:

(1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest.

Celestine v. Butler, 823 F.2d 74, 77 (5th Cir.), cert. denied, 483 U.S. 1036, 108 S.Ct. 6, 97 L.Ed.2d 796 (1987). As to the first requirement, we have elaborated that in a capital case, "while the movant need not always show a probability of success on the merits, he must present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities [i.e. the other three factors] weighs heavily in favor of granting the stay." O'Bryan v. McKaskle, 729 F.2d 991, 993 (5th Cir.1984) (brackets in original). Indeed, as I discuss below, the issues presented by this petitioner fall far short of constituting a substantial case on the merits, much less one of likelihood of success on the merits. ¹

II.

David Lee Holland is scheduled to be executed after midnight on December 18, 1991. On December 11, 1991, he filed a petition for writ of habeas corpus and motion for stay of execution in federal district court. On December 17, 1991, the district court denied the petition for writ of habeas corpus, a certificate of probable cause to appeal, a stay of execution, and an evidentiary hearing. It granted the state's motion for summary judgment and the petitioner's request to proceed in forma pauperis. At this eleventh hour, Holland now comes to this court, requesting a certificate of probable cause and a stay of execution. Holland makes no assertion of factual innocence but raised some fifteen points in the district court, involving the penalty phase of his trial.

III.

Holland was indicted for the capital murder of Helen Barnard while in the course of committing and attempting to commit robbery. The offense occurred in the course of Holland's robbery of a savings and loan branch. The facts are amply set forth in the opinion of the Court of Criminal Appeals affirming on Holland's direct appeal. See Holland v. State, 761 S.W.2d 307, 311-12 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1560, 103 L.Ed.2d 863 (1989).

IV.

Following Holland's indictment, a unitary trial was conducted on February 26, 1986. After jury selection, Holland pleaded guilty to the charge of capital murder. The jury then returned affirmative answers to the two Texas special issue questions it was required to answer pursuant to former Tex.Code Crim.Proc. Art. 37.071(b)(1), (2). The Court of Criminal Appeals then affirmed. Holland v. State, 761 S.W.2d 307 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1560, 103 L.Ed.2d 863 (1989). Holland filed a timely state petition for writ of habeas corpus on July 26, 1989. On October 16, 1991, the Texas Court of Criminal Appeals issued an opinion denying all relief. See Ex parte Holland, No. 70,970 (Tex.Crim.App. Oct. 16, 1991). The state trial court then set Holland's execution for some time after midnight on December 18, 1991. On appeal, Holland raises only two issues in support of his motion for stay: mitigating evidence and the voluntariness of his confession.

V.

As his primary claim in this petition, Holland asserts that the special issues answered by the jury pursuant to Tex.Code Crim.P. art. 37.071 precluded the jury from considering evidence presented by Holland at the sentencing phase of the trial and giving full mitigating effect to that evidence. (Only the second special issue is in question here, as Holland's attorney conceded to the jury that it should answer the first special issue in the affirmative.) The second statutory issue, answered affirmatively by the jury, is whether there is "a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."

As set forth in Holland's petition, the supposedly mitigating evidence that Holland presented included an exemplary work record, the lack of any violent criminal past, a candid confession by Holland immediately after his arrest, Holland's full cooperation in the state's investigation of the crime, Holland's unconditional guilty plea, and a troubled family history. In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the Court held that the Texas special issue scheme precludes juries from giving mitigating effect to certain types of mitigating evidence, specifically, in Penry's case, evidence of child abuse and mental retardation. Penry applied the holding of Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1980), which had acknowledged that the Texas special issues violate the Eighth Amendment if the defendant's evidence either is "not relevant to the special verdict question" or has "relevance to the defendant's moral culpability beyond the scope of the special verdict questions." Id. at 185, 108 S.Ct. at 2333 (O'Connor, J., concurring).

I disagree with Holland's assertion that, for purposes of determining the constitutionality of the Texas sentencing scheme as applied to Holland, the evidence presented by Holland is similar to that presented by Penry. Unlike the evidence presented by Penry, Holland's mitigating evidence readily could be considered by the jury in answering the second interrogatory. That evidence was introduced and presented to the jury as an attempt to show that the crime in question was an aberration from Holland's normal non-violent character. Accordingly, that evidence fits squarely within the second issue, as it is wholly relevant to the question of whether there was a probability that Holland would commit future acts of violence.

Holland's primary effort before the jury at the sentencing hearing was to show that Holland had no violent criminal past and that the incident in question was a result of specific family and financial pressures and did not reflect an overall or continuing tendency to commit future acts of violence. Holland's attorney argued that his peaceful and hard-working past showed that he would likely be that way in the future; he also asserted that Holland had shown remorse for what he had done and had accepted responsibility for his crime, thus indicating that he was capable of rehabilitation.

The nature of this evidence is in stark contrast to that in Penry. There, the evidence of mental retardation and child abuse was mitigating in the sense that a jury could consider it to lessen Penry's culpability. The defect in the Texas scheme, as applied to Penry, however, was that such evidence could not be considered as mitigating in terms of the second special issue but only could be aggravating in that it could be interpreted as indicating a likelihood of future dangerousness. This is what the Penry Court meant by the "two-edged" nature of the Penry mitigating evidence: that, absent additional instruction, a death sentence imposed under the Texas special issues is unconstitutional if the defendant's evidence mitigates against a death sentence for reasons wholly unrelated to--and independent of--the special issue inquiries. Thus, Holland's argument, seeking to liken his mitigating evidence to Penry's, is without merit, and he is entitled to no relief based upon this argument.

This court has consistently held that the sort of evidence claimed here to be mitigating fits squarely within the second Texas special interrogatory and can be given proper effect under Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). For example, in May v. Collins, 904 F.2d 228, 230 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991), we held that evidence of good work habits and a good employee record could be considered by the jury under the second jury interrogatory. "With regard to the evidence May actually introduced during the punishment phase, we agree with the district court's conclusion that the jury was able to give effect to that evidence through the special issue on future dangerousness." Id. at 232 n. 4 (citing Franklin). In Russell v. Lynaugh, 892 F.2d 1205, 1214-15 (5th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 2909, 115 L.Ed.2d 1073 (1991), we held that the petitioner's crime-free background could be considered by the jury and that the "second special issue ... would have...