Jernigan v. Collins

• Decision Date: 15 December 1992
• Docket Number: No. 92-1415,92-1415
• Citation: 980 F.2d 292
• Parties: Joseph Paul JERNIGAN, 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 292

980 F.2d 292

Joseph Paul JERNIGAN, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 92-1415.

United States Court of Appeals Fifth Circuit.

Dec. 15, 1992.

Rehearing Denied Jan. 20, 1993.

Mark A. Ticer, Dallas, Tex. (court appointed), for petitioner-appellant.

Joan C. Barton, Asst. Atty. Gen. and Dan Morales, Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before JOLLY, DAVIS, and SMITH, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In 1981, a jury in Texas state court found Joseph Paul Jernigan guilty of the cold-blooded murder of Edward Hale and made the findings necessary to sentence Jernigan to death. Jernigan now seeks habeas corpus relief under 28 U.S.C. § 2254. He contends that in the absence of certain errors by his counsel and the trial judge, he would not have received the death penalty. Finding no merit in his arguments, the district court granted summary judgment in favor of the respondent, James A. Collins, the director of the Texas Department of Criminal Justice. We believe that Jernigan is not entitled to habeas relief because he has not demonstrated that any errors on the part of his attorney or the trial judge prejudiced his trial. We, therefore, affirm the decision of the district court.

I

On July 3, 1981, Joseph Paul Jernigan and an accomplice burglarized a home near the town of Dawson, Texas. While they were there, the owner, Edward Hale, returned. Jernigan attacked Hale, hitting him repeatedly in the face with an ashtray and attempting unsuccessfully to stab him with a kitchen knife. Jernigan then grabbed a nearby shotgun and shot Hale in the chest and neck. After the shooting, Jernigan continued to burglarize the house.

The sheriff arrested Jernigan several days later based on information his wife, Vicki Jernigan, provided. A few days after his arrest, Jernigan confessed to the murder of Hale.

On November 4, 1981, a jury convicted Jernigan of capital murder. The jury made the findings required by Texas law for the imposition of the death penalty, and the state trial court accordingly sentenced Jernigan to death.

On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence. See Jernigan v. State, 661 S.W.2d 936, 943 (Tex.Crim.App.1983) (en banc). The court held that Jernigan's confession was legally obtained, the jury was properly selected and instructed, there were no errors in the joinder of portions of the indictment, and the prosecutors' closing argument did not deny Jernigan a fair trial. The United States Supreme Court denied a petition for writ of certiorari.

In March of 1984, Jernigan sought collateral review in the Texas state courts. After an evidentiary hearing, the state trial court found, inter alia, that Jernigan's attorneys effectively assisted him at trial and adequately prepared for the sentencing phase of his trial. Accordingly, the state trial court denied Jernigan's habeas petition. The Texas Court of Criminal Appeals also denied him relief.

At the time he petitioned the state court for habeas relief, Jernigan also petitioned the United States District Court, for the Northern District of Texas, for a writ of habeas corpus. Jernigan filed the petition on the docket of Judge Porter, who entered a stay of execution on March 16, 1984. Jernigan contended he was entitled to the writ on eighteen grounds. The respondent, James A. Collins, director of the Texas Department of Criminal Justice, moved for summary judgment and both sides filed briefs with the court. After hearing oral argument, the district court adopted the findings of the state court and granted summary judgment in favor of Collins. Jernigan appeals.

II

A

Jernigan argues that the Texas statutory scheme did not allow the jury to consider his mitigating evidence. Jernigan's death sentence was based on the jury's affirmative responses to the following two questions:

1) Was the conduct of the defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased would result?

2) Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?

Relying on our holding in Graham v. Collins, 950 F.2d 1009 (5th Cir.1992) (en banc), the district court held that the Texas capital sentencing statute permitted the jury to fully consider the mitigating evidence that Jernigan offered. In Graham, the Fifth Circuit held "that Penry does not invalidate the Texas statutory scheme, and that Jurek continues to apply, in instances where no major mitigating thrust of the evidence is substantially beyond the scope of all the special issues." Graham, 950 F.2d at 1027. Jernigan is now arguing that the Fifth Circuit reached the wrong decision in Graham. He relies--we must say, rather weakly--on the fact that Graham was a close decision, and that the Supreme Court has granted the writ of certiorari in Graham, casting doubt on our decision in Graham.

It must be no surprise that we think that Graham and Penry are harmonic. In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the state of Texas convicted the defendant of murder and sentenced him to death. In the sentencing stage of his trial, the defendant presented mitigating evidence indicating that he was mildly retarded and that his parents had abused him while he was growing up. The Supreme Court held that the Texas special issues, without a special instruction, did not allow the jury to give effect to the defendant's mitigating evidence, and, hence, the jury's answers to the special issues did not reflect a "reasoned moral response" to the defendant's mitigating evidence. Penry, 492 U.S. at 322, 109 S.Ct. at 2949.

In Graham, we reevaluated the Texas statutory scheme in the light of the Supreme Court's decision in Penry. The defendant's mitigating evidence in that case was his youth and his difficult childhood. The Fifth Circuit held that the Texas statutory scheme allowed the jury fully to consider the defendant's mitigating evidence. See also Cordova v. Collins, 953 F.2d 167 (5th Cir.1992).

In the instant case, Jernigan's brother-in-law and his sister-in-law both gave mitigating evidence at the sentence phase of Jernigan's trial. Both of them testified basically that Jernigan was a kind, gentle person who deserves a second chance. Jernigan's brother-in-law testified that Jernigan had rededicated his life to God.

Despite counsel's able arguments, we think that the Texas Special Issues allowed the jury to consider Jernigan's mitigating evidence. First, Graham is the prevailing law in this circuit. Second, irrespective of the continuing viability of Graham, the jury was easily able to give effect to Jernigan's mitigating evidence when it answered special issue number two, which relates to whether Jernigan represents a continuing threat to society. Jernigan's evidence that he is kind and gentle suggests that he is not a continuing threat to society. Unfortunately for Jernigan, the jury found otherwise.

B

We now turn to Jernigan's ineffective assistance of counsel claim. Jernigan argues that the district court used the wrong standard when it concluded that his attorneys provided him with effective assistance at trial. Jernigan contends that the district court erred when it presumed that the state court's factual findings were correct. Jernigan further contends that the district court erred when it granted summary judgment in favor of Collins because the affidavits of Ms. Tullos Kozlowski and Lynn Malone, relating to his future dangerousness, created a genuine issue of material fact.

(1)

We begin with Jernigan's allegation that the district court used the wrong standard when it evaluated his claim that his attorneys did not provide effective assistance of counsel. In the district court, Jernigan alleged that his trial counsel were ineffective in twelve different respects. Noting that Jernigan did not plead the claims with the requisite specificity, the district court dismissed seven of Jernigan's twelve ineffective assistance claims. The district court considered Jernigan's five remaining claims individually before rejecting them.

Contrary to Jernigan's argument, the district court correctly applied the two-part standard for evaluating ineffective assistance of counsel claims that the Supreme Court established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Under Strickland, the defendant must first demonstrate that "his counsel's performance was deficient." For his counsel's performance to be deficient, the defendant must show that his attorney's errors were "so serious that his counsel was not functioning as the 'counsel' " the Sixth Amendment guarantees the defendant. Id. Second, the defendant must also show that his counsel's performance prejudiced him and lead to a trial "whose result is unreliable." Id. The petitioner has the burden of proof on this claim. He must demonstrate, by a preponderance of the evidence, that his counsel was ineffective. Martin v. Maggio, 711 F.2d 1273, 1279 (5th Cir.1983).

(2)

Moving on to the substance of Jernigan's ineffective assistance of counsel claim, Jernigan complains that his attorneys failed to prepare for the punishment phase of his trial. He contends that his attorneys failed to investigate his background and interview his family members. In the state court habeas corpus hearing, the court found that Jernigan's attorneys did investigate his background and prepare for the punishment phase of his trial. The district court presumed that the state court's factual findings were correct and granted summary judgment in favor of the respondent, Collins. Jernigan contends that the district court should not have adopted...