Jones v. Whitley

• Decision Date: 20 July 1991
• Docket Number: No. 91-3608,91-3608
• Citation: 938 F.2d 536
• Parties: Andrew Lee JONES, Petitioner-Appellant, v. John WHITLEY, Warden Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 536

938 F.2d 536

Andrew Lee JONES, Petitioner-Appellant, v. John WHITLEY, Warden Louisiana State Penitentiary Respondent-Appellee.

No. 91-3608.

United States Court of Appeals Fifth Circuit.

July 20, 1991.

William P. Quigley, Nicholas J. Trenticosta, Loyola Death Penalty Resource Center, New Orleans, La., for petitioner-appellant.

Gwendolyn K. Brown, Doug Moreau, Asst. Dist. Attys., Baton Rouge, La., for respondent-appellee.

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

Before KING, HIGGINBOTHAM, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

In the early morning hours of February 17, 1984, Petitioner Andrew Lee Jones beat, raped and manually strangled to death eleven-year old Tumekica Jackson, the daughter of Jones's long-time girlfriend. He was convicted of first degree murder and sentenced to death on November 2, 1984. The instant application for a federal writ of habeas corpus, which was denied by the district court, is Jones's second. His previous federal habeas corpus petition, filed in the district court in March 1988, was rejected by this court in early 1989. See Jones v. Butler, 864 F.2d 348 (5th Cir.1988) (discussing pertinent state and federal procedural history to that date), reh'g and reh'g en banc denied, 868 F.2d 1271 (5th Cir.), cert. denied, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989). Jones is presently scheduled to be executed between midnight and 3:00 a.m. on July 22, 1991. Jones has filed a notice of appeal and a motion for a stay of execution. ¹ Although he has not yet formally filed with this court an "express request" for a certificate of probable cause, because of the proximity of Jones's execution, we elect to treat the notice of appeal as a request for a certificate of probable cause. See F.R.A.P. 22(b). We note that Jones filed an extensive request for such a certificate with the district court, and we have reviewed that request, together with all other material filed with the district court, carefully.

We may grant a certificate of probable cause to appeal only if a petitioner makes a "substantial showing of the denial of a federal right." Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). The basic question posed in this case is whether, in the wake of McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), this second federal petition was properly denied as an abuse of the writ. Rule 9(b), Rules Governing 28 U.S.C. Sec. 2254 Proceedings. For reasons to be explained, we conclude that it was.

I. ADDITIONAL PROCEDURAL BACKGROUND

Jones's first federal habeas petition raised 18 grounds for relief, as discussed in our earlier opinion. Jones v. Butler, supra. One of Jones's contentions was that electrocution constitutes cruel and unusual punishment. Also included was the charge that Jones's trial counsel were constitutionally ineffective for eleven reasons, and it was specifically alleged that:

... (3) Counsel failed to investigate and present evidence on Jones's mental and physical condition at the time he gave his statements ...

(9) Counsel failed to have an independent psychiatric evaluation of Jones's mental condition and problems...."

Jones, 864 F.2d at 365. Jones's appellate brief to this court, filed May 3, 1988, asserted that

Counsel also failed to have Petitioner evaluated by a psychologist, thereby precluding his jury from considering mitigating evidence of his brain damage.

Jones obtained for his first federal habeas petition the affidavit of Dr. Brabham, a psychologist, that Jones was psychotic and suffered from transient psychotic episodes and organic brain damage. Based upon a thorough review of the trial court record, the federal district court and this court found that defense counsel's performance had a sound strategic footing and was not defective. The United States Supreme Court denied a writ of certiorari following this court's rejection of petitioner's first habeas petition. Jones v. Butler, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989).

On August 22, 1989, petitioner filed his second petition for post-conviction relief in Louisiana state court, prominently asserting that he suffers from substantial mental defects including brain damage and dysfunction, psychosis and borderline retardation, which existed both before and at the time of the offense. According to the 1989 petition, Jones's defense counsel at trial concluded that "petitioner's mental condition prior to and at the time of the offense would be the most significant factor at his penalty phase trial." Defense counsel Price was aware that Jones had a longstanding history of alcohol and drug abuse that had likely affected both his mental condition and his commission of the offense. Attached to that petition were neurological and neuropsychological evaluations conducted by two experts, both of whom related a medical history including drug and alcohol abuse, migraine headaches, several head injuries, and numerous consultations for his insomnia, anxiety and depression. Dr. Merikangas reported on June 30, 1989, that Jones had previously been medicated with Haldol, Sinequan, Elavil, Vistaril, and Thorazine. His report refers to a March 5, 1984 psychiatric evaluation in which it was noted that Jones suffered from auditory hallucinations "telling him to do 'wrong things or to hurt himself, tell him he was no good.' The Sinequan and Thorazine were prescribed on that visit." Dr. Zimmerman, a clinical psychologist who conducted objective neuropsychological testing on Jones for the 1989 petition, reported that Jones had been treated with Haldol, Vistaril, Ascenden, Sinequan, Elavil, and Thorazine. Dr. Zimmerman also reported that ... "[I]n January, 1981 depression and anxiety were noted. In April 1981 insomnia and anxiety were noted and Sinequan was prescribed. In 1981 he was described as depressed and Ascenden was prescribed. In 1984 a Psychiatric Evaluation was performed which reports auditory hallucinations and suicidal thoughts."

Jones contended in the 1989 petition that he was denied the use of potentially exculpatory psychiatric testimony because the public defender's office which represented him was chronically underfunded and unable to provide expert evaluation and testimony for his capital trial. This claim was rejected by the Louisiana habeas court, which observed that if either of his trial counsel had any doubts as to the mental incapacity of their client they had the authority to request a mental examination pursuant to La.Code of Crim.P. arts. 641-649.1. Louisiana law permits the convening of a sanity commission to which doctors are appointed to examine the defendant and report their findings on his competency to stand trial, his ability to distinguish right from wrong at the time of the offense, or if he was under the influence of extreme mental or emotional disturbance or was impaired as a result of mental disease or defect which could serve as a mitigating circumstance during the penalty hearing. Defense counsel had not requested the appointment of a sanity commission.

Without ruling on the mental illness claim, and therefore inferentially rejecting it, the Louisiana Supreme Court subsequently reversed the denial of habeas relief to Jones and remanded the case to the trial court solely for a hearing on an unrelated Batson ground. State ex rel. Jones v. Butler, 547 So.2d 730 (La.1989). Relief was again denied on remand to the trial court.

Jones's third state habeas petition was filed July 10, 1991, twelve days before the presently scheduled execution date. His first claim in this petition is that the state concealed from Jones's trial and habeas counsel the information that he was being treated with psychotropic drugs while jailed prior to and during his capital trial. Counsel additionally may be saying that jail physicians had diagnosed Jones as psychotic, but this appears to an inference from the fact that he was medicated. His other three claims relate to the constitutionality of Louisiana's use of its electric chair. The state courts denied relief without written orders, and the federal district court has denied Jones's application for Sec. 2254 relief, denied a stay of execution, and declined to grant a certificate of probable cause. Jones has filed a notice of appeal and a motion for certificate of probable cause.

II. STANDARD OF REVIEW

Because this is a successive application for federal writ of habeas corpus, we must decide, before proceeding to the merits, whether it represents an abuse of the writ pursuant to Rule 9(b). The Supreme Court has recently held that "the same standard used to determine whether to excuse state procedural defaults should govern the determination of an excusable neglect in the abuse of the writ context." McCleskey, 111 S.Ct. at 1468. Thus, a petitioner's serial habeas petition must be dismissed as an abuse of the writ unless he demonstrates that there was "cause" not to have raised the points in a previous federal habeas petition and "prejudice" if the court fails to consider the new points. See Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508-09, 53 L.Ed.2d 594 (1977). The Court explained its 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. Murray v. Carrier, 477 U.S. at 488 [106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) ]. Objective factors that constitute cause include " 'interference by officials' " that makes compliance with the state procedural rule impracticable, and "a showing that the factual or legal basis for a claim was not reasonably available to counsel." Id.

111 S.Ct. at 1470. After the state raises the issue of writ abuse, the petitioner bears the burden of showing cause and prejudice. No evidentiary hearing is required if the...