Lackey v. Scott

• Decision Date: 21 April 1995
• Docket Number: MO-95-CA-68-F.
• Citation: 885 F. Supp. 958
• Parties: Clarence Allen LACKEY, Petitioner, v. Wayne SCOTT, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
• Court: U.S. District Court — Western District of Texas

885 F. Supp. 958

Clarence Allen LACKEY, Petitioner, v. Wayne SCOTT, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.

MO-95-CA-68-F.

United States District Court, W.D. Texas, Midland-Odessa Division.

April 21, 1995.

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Robert C. Owen, Brent E. Newton, Rita J. Radostitz, Texas Resources Center, Austin, TX, for plaintiff.

Dan Morales, John Jacks, Atty. Gen., Austin, TX, for defendant.

MEMORANDUM OPINION AND ORDER

FURGESON, District Judge.

This day the court considered Petitioner's Motion for Stay of Execution. For the following reasons, the court grants this Motion.

Clarence Allen Lackey's claim is an unusual one and comes to this court in an unusual posture. While the Supreme Court has refused to review three different petitions for writ of certiorari from Lackey, he did achieve something of a breakthrough on his third try, because he caught the attention of Justice Stevens. See Memorandum Respecting Denial of Certiorari, Lackey v. Texas, ___ U.S. ___, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995). With Justice Breyer in agreement, Justice Stevens urged further consideration by lower courts of Lackey's claim that his seventeen-year wait on death row constitutes a violation of the Eighth Amendment because a large portion of the wait is attributable to deliberate State action. Labeling the claim as "important," "novel" (three times), "legally complex" and with "potential for far-reaching consequences," Justice Stevens concluded that it "seems an ideal example" of a claim that would benefit from further study by state and federal courts. ___ U.S. ___, 115 S.Ct. 1421, 131 L.Ed.2d 304. This opinion was bolstered, in part, by a recent decision from the highest court in England that found persuasive a claim similar to Lackey's which was raised under the English precursor to the Eighth Amendment. See Pratt & Morgan v. The Attorney General of Jamaica, Privy Council Appeal No. 10 of 1993, 3 WLR 995, 143 NLJ 1639, 2 AC 1, 4 A11 ER 769 (1993) (en banc).

Since the Memorandum of Justice Stevens does not operate to halt the legal process, the State set April 28, 1995, as Lackey's date for execution. Lackey then filed this Petition for Writ of Habeas Corpus. In light of the unusual nature of the claim and the inherent complexity of habeas corpus death penalty jurisprudence, this court conducted several lengthy telephone conferences with counsel for both parties in an effort to clarify the issues and to inform counsel of the court's developing views. The court also placed itself under a self-imposed deadline to reach an early decision, not only because Petitioner's execution date was set for April 28, but also because an appeal was likely and a reviewing court deserved reasonable time to consider the matter. Although the court's self-imposed deadlines slipped, it was through no fault of both counsel, who responded promptly to all inquiries and are to be commended for their constructive input.

One unexpected result came from the court's delay. Since both counsel understood the court's "developing views," they were alert to breaking legal pronouncements which might address issues of importance to the court. On April 19, 1995, the day the court was set to issue its ruling, Petitioner cited the court to James v. Cain, 50 F.3d 1327 (5th Cir.1995). There, the Fifth Circuit analyzed the abuse of the writ doctrine in a habeas corpus death-penalty-stay case in light of the Barefoot standard, which asks whether the issue presented is debatable among jurists of reason.¹ This court failed to anticipate the reasoning set forth in James v. Cain and had incorrectly decided that Barefoot did not apply to the threshold issue of the abuse of the writ. Accordingly, the court was set to dismiss the petition, based on Respondent's Motion to Dismiss. Under the circumstances, it would have been error to do so. Therefore, even though the delay saved the time of a reversal and remand, it still leaves a reviewing court a very narrow window of time to assess this opinion.

The court had hoped that it would complete its work soon enough for a reviewing court to have at least a week, instead of a few days, to examine this matter. The hope is unrealized. Once again, a reviewing court will be faced with a life-and-death decision under daunting time pressures. This is, of course, a problem across the entire spectrum of habeas corpus death penalty litigation and one of the reasons the jurisprudence in the field has evolved in such a difficult way. Since a reviewing court will have little time for review, this court's one final goal has been to detail the following opinion with sufficient specificity so that appellate analysis can be expedited.

FACTUAL BACKGROUND

On July 31, 1977, in Lubbock, Texas, Diane Kumph met a violent death at the hands of a stranger, Clarence Allen Lackey. After kicking in the front door of her apartment, Lackey abducted her, raped her, severely beat her and then killed her by cutting her throat. Later the same day, he dumped her body by the side of a dirt road outside of town.

Lackey was arrested shortly after the attack. In February 1978 he was tried and convicted of capital murder. The State's evidence at trial left no room for doubt about his guilt.²

PROCEDURAL HISTORY

1. DIRECT STATE APPEAL

Lackey has been imprisoned since his arrest in 1977 in connection with the rape and murder of Kumph. Under Texas law, Lackey's 1978 capital murder conviction was automatically appealed to the Texas Court of Criminal Appeals, which heard argument in April 1979 and, in a five-to-four decision, remanded the case to determine whether Lackey had been competent to stand trial in 1978. Lackey v. State, 638 S.W.2d 439, 459 (Tex.Crim.App.1982). On another ground, Lackey requested a rehearing, claiming that a prospective juror had been, over objection, prematurely and improperly excused. In support, he cited a Supreme Court case, Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), issued after his appeal had been filed. After the rehearing, the Court of Criminal Appeals agreed with Lackey and reversed his conviction in its entirety. Lackey v. State, 638 S.W.2d at 471-76.

In April 1983 Lackey was tried a second time for capital murder. He was convicted once more and sentenced to death. Again, the case went to the Court of Criminal Appeals by automatic appeal, with oral argument being held in March 1984. In one of his points of error, Lackey complained that his request for a special jury instruction at the punishment stage of his trial had been denied, thereby precluding the jury from considering certain mitigating evidence. While the Court of Criminal Appeals held the matter under advisement, several important cases were decided which addressed the issue Lackey had raised. See Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (holding that defendant did not have an Eighth Amendment right to an instruction that the jury could consider "residual doubts" about guilt as mitigating circumstances during sentencing); Penry v. Lynaugh, 832 F.2d 915 (5th Cir.1987) (questioning whether the denial of a jury instruction during sentencing regarding the effect of mitigating evidence gave the jury the full range of discretion to decline to impose the death penalty, as required by the Constitution).

In June 1989 the Court of Criminal Appeals, in a five-to-three decision, affirmed Lackey's conviction and sentence. Lackey v. State, 819 S.W.2d 111 (Tex.Crim.App.1989). The Supreme Court reversed the Fifth Circuit weeks later in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (holding unconstitutional jury instructions that allowed consideration of defendant's retardation as an aggravating factor but not as a mitigating factor). Lackey moved for a rehearing, which the Court of Criminal Appeals granted. After additional briefing, the Court of Criminal Appeals issued a second opinion, once again affirming the trial court conviction, this time in a six-to-three decision. Lackey v. State, 819 S.W.2d 111, 128-41 (Tex.Crim.App.1991). Lackey's second motion for rehearing was dismissed by the Court. He did not seek certiorari review, and his conviction became final in December 1991, more than seven years after he was sentenced to death for the second time.

2. FIRST STATE HABEAS CORPUS PETITION

Lackey was originally scheduled to be executed on July 13, 1992. He obtained two modifications of that date in order to conduct an investigation and present claims in a state habeas corpus application. In December 1992, the state district court denied a third motion to modify the execution date. Lackey filed his first state habeas corpus petition six days before his scheduled execution.

The state district court denied Lackey's requested relief the morning before his scheduled execution. That afternoon, the Texas Court of Criminal Appeals adopted the district court's findings and also denied relief. Ex parte Lackey, Writ No. 24,267-01 (Tex.Crim.App. Dec. 16, 1992), cert. denied, Lackey v. Texas, ___ U.S. ___, 113 S.Ct. 1319, 122 L.Ed.2d 705 (1993).

3. FIRST FEDERAL HABEAS CORPUS PETITION

Lackey then filed his first federal habeas corpus petition in United States District Court in Midland, Texas (Bunton, J., presiding). A stay was granted to permit briefing and an evidentiary hearing. After review, the court denied Lackey's requested relief. Lackey v. Collins, Memorandum Opinion and Order, No. MO-92-CA-181 (W.D.Tex. June 11, 1993). The Fifth Circuit affirmed the denial of Lackey's petition for writ of habeas corpus and vacated the stay of execution. Lackey v. Scott, 28 F.3d 486 (5th Cir.), reh'g denied, Lackey v. Scott, 35 F.3d 564 (5th Cir.1994), cert. denied, Lackey v. Scott, ___ U.S. ___, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995).

4. SECOND STATE HABEAS CORPUS PETITION

In February 1995, the state district court set Lackey's fourth...