James v. Cain

• Decision Date: 17 April 1995
• Docket Number: No. 95-30354,95-30354
• Citation: 50 F.3d 1327
• Parties: Antonio JAMES, Petitioner, v. Burl CAIN, Warden, Louisiana State Penitentiary, Angola, Louisiana, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1327

50 F.3d 1327

Antonio JAMES, Petitioner, v. Burl CAIN, Warden, Louisiana State Penitentiary, Angola, Louisiana, Respondent.

No. 95-30354.

United States Court of Appeals,

Fifth Circuit.

April 17, 1995.

Nicholas J. Trenticosta, Loyola Post Conviction, Defender Organization, New Orleans, LA, for appellant.

Harry Connick, Dist. Atty., Jack C. Peebles, Asst. Dist. Atty., New Orleans, LA, for appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

On Application for Certificate of Probable Cause and Motion for Stay of Execution.

Before KING, JONES and DUHE, Circuit Judges.

KING, Circuit Judge:

Antonio James is scheduled to be executed on April 18, 1995 between the hours of 12:00 A.M. and 3:00 A.M. On April 13, 1995, the district court denied Antonio James's fourth petition for writ of habeas corpus in which James sought to set aside his December 1981 Louisiana first-degree murder conviction and death sentence. James's applications for a certificate of probable cause and for a stay of execution were similarly denied. James has filed a notice of appeal from the denial of his habeas petition, and the case is now before us on James's application for a certificate of probable cause and his motion for a stay of execution. We find that James has failed to make the required showing for a certificate of probable cause, and therefore, we deny his application. We also find that he has failed to make the requisite showing for a stay of execution, and as a consequence, we deny his motion for a stay.

I. PROCEDURAL BACKGROUND

James was charged in a July 12, 1979 indictment with the first-degree murder of Henry Silver. Following a jury trial in the Orleans Parish District Court on December 14-16, 1981, James was found guilty as charged and sentenced to death. The circumstances of the murder and the evidence adduced at trial are described in some detail in the first of our two prior opinions addressing James's earlier habeas petitions. See James v. Butler, 827 F.2d 1006 (5th Cir.1987), cert. denied, 486 U.S. 1046, 108 S.Ct. 2044, 100 L.Ed.2d 628 (1988). On direct appeal, the Louisiana Supreme Court affirmed James's conviction and sentence, and the United States Supreme Court denied his petition for writ of certiorari. See State v. James, 431 So.2d 399 (La.), cert. denied, 464 U.S. 908, 104 S.Ct. 263, 78 L.Ed.2d 247 (1983).

James unsuccessfully sought state post-conviction relief, and in November 1983, he filed his first petition for habeas relief in federal district court. In June of 1984, the district court dismissed the petition without prejudice for failure to exhaust state remedies. Subsequently, James again attempted to seek post-conviction relief in the Louisiana state courts, and once again, he was unsuccessful.

In late July of 1984, James filed his second habeas petition in federal district court. The district court granted a stay of execution and set an evidentiary hearing for October 4-5, 1984. On October 17, 1985, the district court issued a lengthy opinion rejecting each of James's claims, dismissing his petition with prejudice, and vacating the previously entered stay. James timely filed a motion for new trial and requested a stay of execution. Following a November 26, 1985 nonevidentiary hearing on these matters, the district court granted a stay of execution and took the motion for new trial under advisement. On September 17, 1986, the district court issued a memorandum opinion and order denying the motion for new trial and vacating the stay of execution. James filed a notice of appeal to this court, and he applied for a certificate of probable cause and a stay of execution pending appeal. In a lengthy opinion, we denied the application for CPC, and we vacated the interim stay of execution that we had previously entered. See James v. Butler, 827 F.2d 1006 (5th Cir.1987), cert. denied, 486 U.S. 1046, 108 S.Ct. 2044, 100 L.Ed.2d 628 (1988).

James then brought a series of state court attacks on his December 1981 conviction and sentence, all of which were ultimately denied by the Louisiana Supreme Court, without opinion, in orders dated December 9, 1988, January 30, 1989, and February 9, 1989. On February 10, 1989, James brought his third federal habeas attack on his December 1981 conviction and sentence. The district court granted a stay of execution, and on May 11, 1989, the court held an evidentiary hearing on James's claim that the state withheld exculpatory evidence. On September 19, 1989, the court issued an opinion denying all of James's claims and dismissing his petition. The district court granted a CPC, however, and stayed the execution pending appeal. In yet another lengthy opinion, we affirmed the district court's judgment. See James v. Whitley, 926 F.2d 1433 (5th Cir.1991).

On September 9, 1991, James again sought post-conviction relief in the state courts, and the Louisiana Supreme Court granted a stay of execution on September 12, 1991. On September 23, 1994, the Louisiana Supreme Court recalled the stay order and denied the writ. The United States Supreme Court denied certiorari on March 20, 1995. On April 7, 1995, James again sought state court relief, as he moved for a hearing and a stay of execution. The trial court dismissed the petition on procedural objections advanced by the State, and the Louisiana Supreme Court denied review on April 12, 1995.

Thus, on April 13, 1995, James filed his fourth habeas petition in federal district court, seeking habeas relief as well as a stay of execution. On the same day, the district court granted James's motion to consolidate his habeas petition (the "Silver" petition) with his habeas petition in a separate case where James had been convicted of first-degree murder and had received a life sentence (the "Adams" petition). ¹ In the district court, James raised the following claims in his Silver petition: 1) a defective reasonable doubt jury instruction that impermissibly lowered the burden of proof was used in violation of the Sixth, Eighth, and Fourteenth Amendments; 2) the effective assistance of counsel was denied in violation of the Sixth, Eighth, and Fourteenth Amendments; 3) evidence of a prior murder conviction (the Adams murder) was admitted in violation of due process and the Eighth Amendment; and 4) a death sentence for James was requested by the victim's widow in violation of the Eighth and Fourteenth Amendments. ² On the same day, April 13, 1995, the district court entered judgment dismissing both of James's habeas petitions and denying James's application for a CPC and his motion for stay of execution.

Before us, on his application for a CPC and his motion for stay of execution, James asserts only one claim--a claim raised in his Silver petition--regarding the trial court's alleged use of a defective reasonable doubt jury instruction that impermissibly lowered the burden of proof in violation of the Sixth and Fourteenth Amendments. According to James, the application presents to us only "those issues which he feels deserves the encouragement to proceed further." No other claims from the Silver or Adams petitions filed in the district court are alleged.

II. STANDARD OF REVIEW

We have no jurisdiction to address the merits of James's appeal from the district court's denial of habeas relief unless we grant a CPC. See Drew v. Scott, 28 F.3d 460, 462 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 5, 129 L.Ed.2d 906 (1994). To obtain a CPC, James must make a substantial showing that he has been denied a federal right. See Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983); Jacobs v. Scott, 31 F.3d 1319, 1323 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995). James must "demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at 3395 n. 4 (citations omitted) (internal quotations omitted). In a capital case, although the court may properly consider the nature of the penalty in deciding whether to grant a CPC, this alone does not suffice to justify issuing a certificate. See id. at 893, 103 S.Ct. at 3395; Jacobs, 31 F.3d at 1323. Furthermore, the Supreme Court has indicated that "the issuance of a certificate of probable cause generally should indicate that an appeal is not legally frivolous." Barefoot, 463 U.S. at 894, 103 S.Ct. at 3395. Similarly, we will grant a stay of execution only if James shows that there are "substantial grounds upon which relief might be granted." Drew, 28 F.3d at 462 (internal quotation omitted).

III. ANALYSIS AND DISCUSSION

After discussing the abuse of the writ doctrine, we turn to an examination of James's argument.

A. Abuse of the Writ

In McCleskey v. Zant, 499 U.S. 467, 490, 111 S.Ct. 1454, 1468, 113 L.Ed.2d 517 (1991), the Supreme Court 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." In other words, 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. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Woods v. Whitley, 933 F.2d 321, 323 (5th Cir.1991). The McCleskey Court explained the cause standard as follows:

In procedural default cases, the cause standard requires the petitioner to show that "some objective factor external to the defense impeded counsel's efforts" to raise the claim in state court. Objective factors that constitute cause include " 'interference by officials' " that makes compliance with the state's procedural...