May v. Collins

• Decision Date: 26 February 1992
• Docket Number: No. 91-6273,91-6273
• Citation: 955 F.2d 299
• Parties: Justin Lee MAY, 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 299

955 F.2d 299

Justin Lee MAY, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 91-6273.

United States Court of Appeals Fifth Circuit.

Feb. 26, 1992.

Barbara Lowe, Houston, Tex., David T. Shelledy, Willard K. Tom, Francis M. Gregory, Jr., Sutherland, Asbill & Brennan, Washington, D.C., for petitioner-appellant.

Dana Parker, Asst. Atty. Gen., Dan Morales, Atty. Gen., Bob Walt, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

On Application for a Certificate of Probable Cause

Before KING, JOLLY and SMITH, Circuit Judges.

KING, Circuit Judge:

In a line of cases dating back to 1983, this court has considered the circumstances under which state trial court findings of fact made solely in reliance on written affidavits are entitled to a presumption of correctness in federal habeas proceedings. ¹ In this, Justin Lee May's third federal habeas corpus petition, the district court concluded that factfindings made by a state trial court were entitled to deference pursuant to 28 U.S.C. § 2254(d) despite the lack of a live evidentiary hearing to resolve disputed facts. On the basis of the state court's findings, the district court determined that May was not entitled to relief. May seeks a certificate of probable cause to appeal, contending that, because the "trial by affidavit" he received in state court was inadequate to afford him a full and fair hearing, the district court erred in presuming the correctness of the findings and should have held a hearing. Because resolution of this question under the particular circumstances of this case is debatable among jurists of reason, we grant the certificate of probable cause to appeal. We conclude, however, that May's hearing in state court was adequate for purposes of the § 2254(d) presumption of correctness. We also conclude that the district court properly denied the writ in reliance on the state court's findings. We therefore affirm the order of the district court and vacate the stay of execution we previously entered.

I. BACKGROUND AND PROCEDURAL HISTORY

A full review of the facts may be found in the Texas Court of Criminal Appeals' opinion affirming May's conviction on direct appeal, May v. State, 738 S.W.2d 261 (Tex.Crim.App.), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 158 (1987), and in our opinion denying May's first petition for habeas corpus, May v. Collins, 904 F.2d 228 (5th Cir.1990) (per curiam), cert. denied, --- U.S. ----, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991). The facts are presented here only to the extent necessary for an understanding of the issues raised in this appeal.

A. The Murder of Jeanetta Murdaugh

In 1978, Frank and Jeanetta Murdaugh were murdered while working in their Western Auto store in Freeport, Texas, in Brazoria County. The police had few leads and the murders went unsolved for over five years. The break in the case came when an ex-convict named Oren Howard told police of conversations he had had in prison with fellow inmates May and Richard Miles in which May and Miles implicated themselves in the murders. Indictments against May and Miles were handed down in 1984, and May was tried solely for the murder of Jeanetta Murdaugh. He was convicted and sentenced to death. Miles pled guilty to nonaggravated, noncapital murder in exchange for his testimony against May.

The State's case was heavily dependent on the testimony of Howard and Miles. Howard testified about two conversations he had had in which May was involved. In the first conversation, May learned that Howard was from Freeport and asked whether Howard was familiar with the Western Auto store in that city. According to Howard, the two disagreed about the location of the store, and May said "I know because me and my fall buddy was going to hit that Western Auto store and that old man and woman died." The second conversation took place several months later, and involved Howard, May and Miles. Howard testified that, as they discussed past and future robberies, Miles mentioned as a "good score" for a future robbery a store in a town near Freeport that was operated by an elderly couple. Miles then suggested that, if May participated, there would be no problems because May would shoot. According to Howard, May then reminded Miles, "you know what we got in Freeport? We got a death sentence waiting on us in Angleton [county seat of Brazoria County]." Howard testified that May then told the story of the robbery and murders:

Told me that they pulled up to the store. He walked in first. Went over to some shelves where they put stuff on shelves. There was an elderly woman over there close to the shelves and an old man behind the counter. And that Miles walked in and was talking to the old man about a shotgun; wanted to look at a shotgun or something. He said the old man handed him a shotgun. Then he wanted some shells. He told him he would take the shotgun and wanted some shells. Said the old man handed him some and he started loading the shotgun in the store and said the old man snapped and grabbed the shotgun and told him he can't do it, and was wrestling over the shotgun and it went off and hit the ceiling. The old woman hollered and started running that way and Justin said he blowed her away from behind. And they was still wrestling over the shotgun; this old man and Miles. And Miles said he turned around and looked at Justin and Justin spun around and shot the old man off of him.

Miles testified that on the day before the murders, he and May drove from Houston to Freeport. Miles carried a .32 caliber pistol in the glove compartment. Because Miles was on parole and was not supposed to leave Houston without permission, they registered at a Freeport hotel under an assumed name. The next day, May suggested robbing the Western Auto store. His plan was for Miles to enter the store first, pretend to be interested in purchasing a shotgun, and load the shotgun. May would enter the store armed with Miles's pistol. Late in the afternoon of June 27, 1978, Miles entered the Western Auto store and began to load a shotgun. By this time, May had entered the store with Miles's pistol concealed under his shirttail. Frank Murdaugh told Miles that he could not load the gun in the store, and, when he reached for the gun, May shot him. Miles, startled by the shot, fired the shotgun into the ceiling and ran to the front door. Miles heard several shots and saw May shoot Jeanetta Murdaugh. Miles then picked up his car, drove around the block, and drove to the end of the alley behind the store. May ran down the alley carrying an armload of guns, dropping one along the way. May placed the rest of the guns in the car and returned Miles's .32 pistol.

B. Proceedings for Post-Conviction Relief

1. The First Two Rounds of Habeas

After May's conviction was affirmed on direct appeal and an execution date was set, he sought a writ of habeas corpus in state court. That court denied relief, as did the Texas Court of Criminal Appeals. Ex Parte May, Writ No. 17,992-01 (Tex.Crim.App. June 3, 1988). He subsequently sought habeas relief in federal court, inter alia on grounds that application of the Texas capital sentencing scheme in his case was unconstitutional under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). We affirmed the district court's denial of his petition, finding that his tactical decision not to introduce certain mitigating evidence removed his claim from the ambit of Penry. May v. Collins, 904 F.2d 228 (5th Cir.1990) (per curiam), cert. denied, --- U.S. ----, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991). May's execution was rescheduled for April 30, 1991. He filed a second state habeas petition in the trial court on April 18, 1991, but the court again denied relief. The Court of Criminal Appeals stayed the execution in order to consider the appeal, but ultimately denied relief and vacated the stay. Ex parte May, No. 17,992-02 (Tex.Crim.App. Oct. 15, 1991). May's execution was rescheduled for November 26, 1991. On November 15, May initiated his second federal habeas petition, this time contending that the Texas capital sentencing scheme violated his Sixth Amendment right to effective assistance of counsel by preventing counsel from introducing mitigating evidence. The district court denied relief and we refused to grant either a certificate of probable cause to appeal or a stay of execution. May v. Collins, 948 F.2d 162 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 907, 116 L.Ed.2d 808 (1992).

While his certificate of probable cause to appeal the second habeas petition was pending, May filed a supplemental emergency motion for "appropriate relief" or, in the alternative, an original petition for a writ of habeas corpus to allow the consideration of newly discovered evidence showing that May was innocent. Attached to these papers were affidavits procured from Richard Miles and Oren Howard on November 22, 1991, in which the two men stated that their trial testimony was false. They also stated that the prosecutors had assisted them in fabricating their testimony, and that the testimony was used against May with knowledge that it was false. May argued that the affidavits showed that a due process violation would result in the execution of a person who was actually innocent of the crime. We declined to consider this motion, however, pointing out that "[t]he alleged constitutional violation which appears to underlie the late-filed motion is not the subject of any petition for habeas relief presently pending in the state courts or in the federal district court." May v. Collins, 948 F.2d at 168. We similarly declined to exercise our original jurisdiction under Fed.R.App.P. 22(a) to consider habeas petitions filed initially in the court of appeals or to refer such petitions to the...