Mann v. Lynaugh

• Decision Date: 22 June 1988
• Docket Number: No. CA 3-88-1418-R.,CA 3-88-1418-R.
• Citation: 690 F. Supp. 562
• Parties: Fletcher Thomas MANN, Plaintiff, v. James A. LYNAUGH, Director, Texas Department of Corrections, Defendant.
• Court: U.S. District Court — Northern District of Texas

690 F. Supp. 562

Fletcher Thomas MANN, Plaintiff, v. James A. LYNAUGH, Director, Texas Department of Corrections, Defendant.

No. CA 3-88-1418-R.

United States District Court, N.D. Texas, Dallas Division.

June 22, 1988.

COPYRIGHT MATERIAL OMITTED

Eden E. Harrington, Adjunct Professor, School of Law, University of Texas at Austin, Austin, Tex., Scott W. Anderson and Dean S. Neuwirth, Arnold & Porter, Denver, Colo., for plaintiff.

Jim Mattox, Atty. Gen., Mary F. Keller, First Asst. Atty. Gen., Lou McCreary, Executive Asst. Atty. Gen., Michael P. Hodge, Asst. Atty. Gen., Chief Enforcement Div., and William C. Zapalac, Asst. Atty. Gen., Austin, Tex., for defendant.

MEMORANDUM OPINION

BUCHMEYER, District Judge.

This is a death penalty case. The petitioner is Fletcher Thomas Mann, who is before this Court for the second time. Mann v. Lynaugh, 688 F.Supp. 1121 (N.D. Tex.1987), appeal dismissed, 840 F.2d 1194 (5th Cir.1988).

For the following reasons, Mann's motion for relief from judgment under Rule 60(b), Fed.R.Civ.P., is GRANTED — and the execution of Mann, now scheduled for June 25, 1988, is STAYED pending this Court's consideration of the amended petition for writ of habeas corpus to be filed by Mann within thirty (30) days from the date of this opinion.

1. THE PROCEDURAL HISTORY

Mann's previous petition raised only two issues: the improper exclusion of jurors under Witherspoon¹ and the improper admission of Mann's confession. The second issue — the confession — raised substantial constitutional questions; the first issue did not.

On October 20, 1987, this Court denied the petition for writ of habeas corpus. On November 20, 1987, Mann's attorney filed a notice of appeal. On March 15, 1988, the Fifth Circuit — because the notice of appeal had been filed one day after the time prescribed in Rule 4(a), Fed.R.App.P. — reluctantly dismissed the appeal for want of jurisdiction. Mann, 840 F.2d at 1201.²

On May 20, 1988, the state scheduled Mann's execution for June 25, 1988. On June 17, 1988, new attorneys representing Mann filed a motion under Rule 60(b), Fed. R. Civ. P., asking this Court:

(i) to vacate the judgment entered on October 20, 1987 and permit Mann to file an amended petition for writ of habeas corpus; or

(ii) in the alternative, to "re-enter the October 20, 1987 judgment and to stay Mann's execution pending expiration of the time to appeal the re-entered judgment."

On June 21, 1988, the state filed its Opposition to Motion to Vacate Judgment and For Stay of Execution.³

Specifically, Mann's motion alleges two grounds for relief: "First, prior counsel filed a two-issue petition for writ of habeas corpus, which neglected to raise substantial and meritorious claims on Mann's behalf. Second, prior counsel failed to protect Mann's right to appellate review of this Court's denial of the petition ... by failing to file a timely notice of appeal or an appropriate motion for extending the time for filing the notice of appeal."

2. RELIEF FROM PRIOR JUDGMENT

Mann is, without question, entitled to relief under Rule 60(b) in order to perfect an appeal from this Court's judgment of October 20, 1987. Indeed, one of the very purposes of Rule 60(b) is to prevent litigants from being deprived of their day in court because of inadvertent, technical mistakes of their attorneys.

For example, Rule 60(b) relief has been granted to defendants in a slander suit whose attorney did not appear for trial⁴ ... and to the plaintiff in a medical malpractice case whose new attorney failed to file a timely appearance⁵ ... and to the plaintiff in a § 1983 case whose attorney failed to notify the court of a change in address.⁶ If Rule 60(b) relief is proper to prevent clients from suffering possible loss of money or property because of their lawyers' negligence, then certainly it is proper in a death penalty case to prevent a defendant from being deprived of the right to an appeal before his execution.

Therefore, in prior habeas proceedings in death penalty cases, relief under Rule 60(b) has been routinely granted where an attorney's negligence caused the lack of a timely notice of appeal. See, e.g., Selvage v. Lynaugh, 823 F.2d 845 (5th Cir.1987);⁷ Zeigler v. Wainwright, 805 F.2d 1422 (11th Cir.1986). Just as in Selvage and Zeigler, Mann's Rule 60(b) motion should be granted in this case — particularly since (i) the issue raised concerning the admission of Mann's confession does raise serious constitutional issues, and (ii) this Court feels very strongly that its opinion of October 20, 1987 should be reviewed on appeal.

3. NEW GROUNDS FOR RELIEF

Under the circumstances of this case, Mann should also be permitted to file an amended petition for writ of habeas corpus raising new grounds for relief.

a. The Franklin Issue

Today, June 22, 1988, the United States Supreme Court rendered its decision in Franklin v. Lynaugh, ___ U.S. ___, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), affirming 823 F.2d 98 (5th Cir.1987).⁸

The question addressed in Franklin was whether the jury "must be instructed on the effect of mitigating evidence under the Texas capital punishment scheme" under which the jury is asked two questions: whether it has found beyond a reasonable doubt (i) that the murder was committed deliberately and with the reasonable expectation that death would result, and (ii) that there is a probability that the defendant would constitute a continuing threat to society. However, the only "mitigating evidence" in Franklin was that "petitioner's disciplinary record while incarcerated from 1971-1974 and 1976-1980 was without incident."

Four justices (White, Scalia, Kennedy, and Chief Justice Rehnquist) held that the Franklin jury was not precluded from "consideration of any relevant mitigating circumstances." Three justices dissented (Stevens, Brennan, Marshall), primarily on the grounds that "the Texas scheme is unconstitutional because it limits the jury's consideration to only that mitigating evidence that bears on one or more of the two Special Issues." The concurring opinion by Justice O'Connor, joined by Justice Blackmun, reasoned that under the particular facts before the Court in Franklin — where the only "mitigating evidence" was that the defendant "had no disciplinary violations while in prison" — the jury's consideration of this evidence was not limited because it was "free to give mitigating effect to this evidence in answering the special verdict question regarding future dangerousness."

However, Justices O'Connor and Blackmun clearly agreed with the three dissenting justices that, in a case presenting different facts, the Texas capital punishment scheme may well be unconstitutional. The concurring opinion states:

"The plurality concludes that the jury's consideration of petitioner's prison record and of its `residual doubts' about his guilt was not limited in this case, but nevertheless goes on to suggest that a State may constitutionally limit the ability of the sentencing authority to give effect to mitigating evidence relevant to a defendant's character or background or to the circumstances of the offense that mitigates against the death penalty. Ante, at 13, 14, n. 10. Unlike the plurality, I have doubts about a scheme that is limited in such a fashion. I write separately to express those doubts and to explain my reasons for concurring in the judgment.

. . . . .

Under the sentencing procedure followed in this case the jury could express its views about the appropriate punishment only by answering the special verdict questions regarding the deliberateness of the murder and the defendant's future dangerousness. To the extent that the mitigating evidence introduced by petitioner was relevant to one of the special verdict questions, the jury was free to give effect to that evidence by returning a negative answer to that question. If, however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its `reasoned moral response' to that evidence. If this were such a case, then we would have to decide whether the jury's inability to give effect to that evidence amounted to an Eighth Amendment violation. In my view, however, this is not such a case...." (Emphasis added.)

Although Mann's Rule 60(b) motion was filed five days before the Supreme Court's Franklin opinion, it presents the very case described by Justice O'Connor in the above-quoted portions of the concurring opinion. Specifically, in an Application for Post-Conviction Writ of Habeas Corpus filed on June 22, 1988 with the Texas Court of Criminal Appeals, Mann argues:

"A preliminary investigation has revealed mitigating evidence which could have been presented to the jury, but was effectively precluded by the Texas sentencing procedure. Petitioner's trial counsel acknowledges that he did not investigate whether petitioner suffered from some mental illness, because he was aware that the jury could not, under the Texas sentencing scheme, consider that evidence as mitigating. Exhibit 4. Had petitioner's attorney not been chilled from exploring Petitioner's mental illness, he would have discovered that Petitioner may suffer from organic pathology, and could be diagnosed as suffering from schizophrenia, sociopathy, or pseudo-psychopathic schizophrenia. Exhibit 5 at 3-4.⁹

Other mitigating evidence was excluded from Petitioner's trial based because of constitutional defects the issues raised in Franklin and Penry. For example, there is overwhelming evidence that Petitioner was subject to extraordinary physical abuse as a child. Exhibits 1, 2, 3, 5. Petitioner was beaten by his father with fists, belts, switches, and other objects. Exhibits 1, 2. These beatings

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