Jones v. Butler

• Citation: 864 F.2d 348
• Decision Date: 21 December 1988
• Docket Number: No. 88-3214,88-3214
• Parties: Andrew Lee JONES, Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary, Angola, Louisiana, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 348

864 F.2d 348

Andrew Lee JONES, Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary Angola, Louisiana, Respondent-Appellee.

No. 88-3214.

United States Court of Appeals Fifth Circuit.

Dec. 21, 1988.

Rehearing and Rehearing En Banc Denied Feb. 21, 1989.

John Di Giulio, Di Giulio & Bertucci, Baton Rouge, La., Judith G. Menadue (Court-appointed), Ginger Roberts Berrigan (Court-appointed), Gravel & Brady, Louisiana Capital Defense Project, New Orleans, La., for petitioner-appellant.

Dan J. Grady, III, Charles Grey, Asst. Dist. Attys., Baton Rouge, La., for respondent-appellee.

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

Before RUBIN, KING and HIGGINBOTHAM, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The State of Louisiana having sentenced him to death by electrocution, a state prisoner seeks habeas corpus on 18 grounds. We grant a certificate of probable cause to appeal, but, after reviewing the 70-page memorandum filed in the district court, the trial record, and the opinion of the district court, and after hearing oral argument, we find no violation of Jones's constitutional rights, and therefore affirm the district court's judgment denying him a writ of habeas corpus and vacate our order staying execution.

I.

Andrew Lee Jones was convicted of first degree murder and sentenced to death by a jury in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana. His conviction and sentence were affirmed by the Louisiana Supreme Court. ¹ After the Louisiana Supreme Court denied his petition for rehearing, Jones filed a petition for certiorari in the United States Supreme Court. The Court denied the petition ² and a later petition for rehearing. ³ Thereafter, Jones filed a petition for post-conviction relief, writ of habeas corpus and evidentiary hearing in the state district court. The state district judge denied the writ in 1987. After first granting Jones a stay of execution so that it could consider his application, the Louisiana Jones's execution was then scheduled for March 31, 1988. He filed an application for stay of execution and for a writ of habeas corpus in the federal district court for the Middle District of Louisiana on March 25. He also filed a motion for an evidentiary hearing and a motion to provide funds for expert assistance. In a twenty-page opinion, rendered on the afternoon of March 27, 1988, the district court denied all relief sought and also refused to grant Jones a certificate of probable cause for appeal. Jones filed a notice of appeal on March 29, and, on the afternoon of that day, a motion for a certificate of probable cause and for a stay of execution pending appeal. We granted a stay pending further order of this court in order to give us time to read the record and to study the issues.

                Supreme Court denied the petition. 4   Jones then filed another petition for certiorari with the United States Supreme Court.  That Court denied the petition 5 and Jones's petition for rehearing. 6
                

Although Jones denies the sufficiency of the evidence to support the guilty verdict, the facts adduced at the trial support the resume given by the Louisiana Supreme Court on direct appeal:

"On February 17, 1984, eleven-year old Tumekica Jackson was living with her mother and her grandparents in the Scotlandville section of Baton Rouge. At 4:00 a.m., the grandmother discovered that the child was missing from her bedroom.

"The police discovered that someone had broken the screen of the rear den window and had opened the back door. In the muddy ground near the house, police obtained a cast of an imprint made by the left shoe from a pair of size 8 1/2 tennis shoes. There were no signs of a struggle inside the house.

"The investigation immediately focused on defendant because his stormy romantic relationship of several years with the victim's mother had been broken off by her the week before. The victim knew defendant well, and he had been in the home many times. On the event of the child's disappearance, defendant had called the mother's home three times and had told the grandmother that he would not be responsible for his actions if the mother continued to refuse to see him.

"About 6:30 p.m., the police went to the apartment where defendant lived with his sister, Terry Jones, and his half brother, Abraham Mingo. Defendant told the police he had been home all night, and Mingo and Miss Jones confirmed his story.

"A few hours later, Miss Jones called the police and said she may have been 'mistaken' about defendant's being home all night. After questioning her further, the police obtained a written consent to search the apartment about 10:00 a.m. When no one answered the officer's knock, Miss Jones used her key to open the door. Officers found defendant in the bathroom washing a pair of size 8 1/2 tennis shoes. The bath tub was full of dirt and leaves. The officers seized the tennis shoes and a pair of green gloves, and they requested that defendant give them a statement at the station. After signing a waiver, defendant gave the police a tape-recorded statement in which he denied any knowledge of the offense. He was then allowed to leave with his sister.

"At approximately 6:00 p.m., Tumekica's partially nude body was found in a drainage canal. An autopsy established that the child had been beaten, raped, and manually strangled.

"The police again questioned Abraham Mingo. Although he initially told conflicting stories, he eventually gave a detailed account of his activities with defendant on Friday night and Saturday morning. According to Mingo, he and his sister (Terry Jones) were out with defendant on Friday evening, but dropped him off in Scotlandville. About 12:30 a.m. on Saturday morning "At Mingo's direction, police recovered a TG & Y bag from a dumpster near a grocery store. The bag contained socks, a pair of blue jeans and a pink sweatshirt, which were wet, muddy, and stained. Later analysis identified the stains as a mixture of blood and seminal fluid.

                defendant returned to the apartment.  Donald Nixon was with defendant, but he stayed only a short time.  About 1:00 a.m., Mingo and defendant went to the Snowflake Lounge, but defendant left alone about 30 minutes later, and Mingo returned to the apartment.  At some point between 4:30 and 5:00 a.m., Mingo was awakened by defendant's knock on the door, whereupon he let defendant in and went back to bed.  When Mingo and defendant were alone in the apartment later that morning, defendant told him that 'he shoulda stayed home,' that 'he did something he didn't want to do,' and that he 'done fucked up.'    Defendant gave Mingo a TG & Y bag and asked him to throw it away, which he did without looking inside.
                

"Mingo also told the police about a pair of boxer shorts that he had found in the bathroom of the apartment. The shorts belonged to Mingo, but (according to Mingo) defendant had worn them on Friday night. Pursuant to Mingo's written consent, the police recovered a pair of stained brown and white boxer shorts from the trunk of Mingo's car. Analysis confirmed the presence of blood and seminal fluid on the boxer shorts.

"On the basis of this information, police obtained a warrant and arrested defendant on Sunday. After advise (sic) and waiver of his right, defendant gave a video-taped statement, in which he asserted that he and Rudolph Springer had gone to the victim's house early Saturday morning to commit a burglary. Fearful of being recognized, defendant remained in the car while Springer entered the house. When Springer returned carrying Tumekica, defendant got in the back seat and pulled his cap over his face. After a few minutes, Springer drove defendant to his apartment at his request. That was the last time that defendant saw Tumekica Jackson.

"At trial, Abraham Mingo, Terry Jones, and Rudolph Springer testified for the state. Having been granted immunity, Mingo testified about defendant's statements and his request to dispose of the TG & Y bag. Springer denied any knowledge of the crime, and he and two corroborating witnesses established his alibi for the pertinent times. Another witness, Reginald Jackson, testified that on the night of the murder defendant asked him for a ride to Scotlandville to look for the victim's mother. He identified the tennis shoes, blue jeans, and pink sweatshirt as the clothes worn by defendant that night.

"The state also introduced the tennis shoes seized from defendant's apartment. A forensic scientist testified that these were the same size and tread design as the one which left the impression at the victim's house, but he could not make a positive identification because of the poor quality of the soil and the resultant poor quality of the cast. He did state that there were no dissimilarities.

"A serologist established that the blood on the victim's underwear and pajama bottoms, as well as that on defendant's boxer shorts and the blue jeans, came from the victim. The seminal fluid found on these articles of clothing came from an individual with Type O blood, the same type as defendant's.

"Defendant did not take the stand, and the defense presented no evidence. The jury unanimously found defendant guilty as charged of first degree murder.

"In the sentencing hearing, the state reintroduced all evidence adduced at trial. The defense presented the testimony of defendant's mother, four of his sisters, and a cousin. The jury, finding two statutory aggravating circumstances, unanimously recommended the sentence of death."

II.

In Barefoot v. Estelle, ⁷ the Supreme Court stated, " 'where an appeal possesses We now examine the arguments advanced by Jones for granting him a writ.

                sufficient merit to warrant a certificate [of probable cause to appeal] the appellant must be afforded adequate opportunity to address the merits, and that if a summary procedure is adopted the appellant

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