May v. Collins
| Decision Date | 12 June 1990 |
| Docket Number | No. 89-6091,89-6091 |
| Citation | 904 F.2d 228 |
| 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 |
David T. Shelledy, New Haven, Conn. (Court-appointed), Bruce M. Bettigole, Washington, D.C. (Court-appointed), Barbara Lowe, Susman, Godfrey & McGowan, Houston, Tex. (Court-appointed), Robert E. Morin, Fisher, Morin & Kagan-Kaus, Francis M. Gregory, Jr., Southerland, Asbill & Brennan, Willard K. Tom, John H. Flemming, Washington, D.C. (Court-appointed), for petitioner-appellant.
Dana E. Parker, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before REAVLEY, KING and JOLLY, Circuit Judges.
In February 1985 petitioner Justin Lee May was convicted of capital murder and sentenced to death. In the intervening five years he has pursued the usual direct appeal as well as habeas proceedings in state and federal courts, without success. The district court having granted certificate of probable cause, May's habeas appeal reaches us.
A full review of the facts can be found in May v. State, 738 S.W.2d 261, 264-66 (Tex.Crim.App.), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 158 (1987). The following summarizes the facts necessary to understand the issues addressed in this appeal.
Frank and Jeanetta Murdaugh were murdered June 27, 1978, while working at their Western Auto store in Freeport, Texas. The murders went unsolved for over five years. In the spring of 1984 Justin Lee May and Richard Miles were indicted for both murders. May ultimately was tried solely for the murder of Jeanetta Murdaugh. Miles was offered a plea bargain, pursuant to which he was allowed to plead guilty to nonaggravated, noncapital murder after he testified against May.
Miles testified that on June 26, 1978 he and May drove from Houston to Freeport. Miles carried a .32 caliber pistol in his glove compartment. After they registered at a hotel under an assumed name, Miles went to visit a friend. Upon returning, May outlined the plans to rob the Western Auto store the next day. May had gone to the store and stated that he was looking for a shotgun for a relative, who would come in later to pick it up. Miles was to enter the store first, posing as the relative, and May was to follow, armed with Miles' pistol. Miles was to select a shotgun and load it for additional security.
On June 27 Miles drove past the store and let May out at a corner. He parked the car and went into the store with May following just behind him. Jeanetta Murdaugh was behind the counter and Frank was arranging inventory on a shelf. Miles selected a shotgun, which Frank handed to him. Miles then picked up some shells and began loading the gun. Frank told Miles that loading was prohibited on the premises and, when Frank reached for the gun, May shot him with the .32 revolver. Miles, startled by the shot, fired the shotgun into the ceiling, dropped the weapon, and then ran to the front door. Miles then heard numerous shots and saw May shoot at Jeanetta Murdaugh. Miles went to his car and drove it into an alley behind the store. May later ran out of the store with an armload of guns, dropping one in the alley. May put the rest of the guns into the car, got in, and returned the .32 revolver to Miles. Miles' testimony was materially corroborated by other witnesses and by physical evidence at the store.
Miles further testified that May told him several months later that his mother had disposed of a rifle and that a friend, Jerry Barmore, would dispose of the rest of the guns. Additionally, Retha May, appellant's mother, identified a letter from her son directing her to dispose of a .308 rifle and a detective indicated that a .308 rifle that had been stolen from the store had not been recovered.
At the close of trial, May was convicted of capital murder for intentionally causing the death of Jeanetta Murdaugh during the course of a robbery. At the punishment phase, the State introduced evidence of May's six prior convictions: a 1969 conviction for robbery by assault, two 1976 convictions for unlawfully passing forged instruments, a 1976 conviction for aggravated assault, a 1978 conviction for aggravated assault, and a 1978 conviction for first degree murder.
The 1978 murder conviction was the result of a guilty plea and the original indictment was for three capital charges of murder in the course of robbery, the so-called Yale Street murders. In the 1978 aggravated assault charge, May had used a .38 caliber pistol that was later shown to have fired some of the fatal shots in the Yale Street murders. Miles was also a prime suspect in those killings.
As mitigating evidence Ralph Price, a work supervisor during a prior incarceration, testified that May's work attendance was good, that he was a good welder and followed instructions, and that no disciplinary violations kept him from working. May's sister, Betty Bevel, testified that in January 1984, she and her two children traveled to Houston to spend a week with May while he was on furlough from prison. According to Bevel, May played Atari, watched television, and visited with her children. During this week, May did not get into any altercations, did nothing violent, and displayed no flashes of temper.
The jury returned affirmative answers to the Texas special issues on deliberateness and future dangerousness and May accordingly was sentenced to death. Tex.Code Crim.Proc.Ann. art. 37.071(b)(1)-(2), (e) (Vernon 1989). On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and the sentence, May v. State, 738 S.W.2d 261, 274 (Tex.Crim.App.1987), and the United States Supreme Court denied certiorari, May v. Texas, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 158 (1987).
After May's execution was set for February 10, 1988, he sought state habeas corpus relief. The warrant of execution was withdrawn, but on May 10, 1988 the trial court recommended denial of the writ and rescheduled the execution for June 15, 1988. The Texas Court of Criminal Appeals subsequently denied habeas relief and May's request for a stay of execution. Ex parte May, Writ No. 17,992-01 (Tex.Crim.App. June 3, 1988).
On June 9, 1988 May filed a petition for federal habeas relief and a stay of execution before the district court. The district court granted the stay of execution. The parties filed cross-motions for summary judgment and May additionally moved for discovery and appointment of experts. On August 21, 1989 the district court issued a Memorandum Opinion and Order, denying all habeas relief. May appeals, raising the following claims:
1) The state violated May's rights to a fair trial and due process by presenting a co-defendant's coached testimony and by interfering with cross-examination of that witness through intimidation.
2) May was improperly denied an instruction on the law governing parole.
3) May's jury was selected in a manner that lead to an underrepresentation of minorities in violation of his Sixth and Fourteenth Amendment rights.
4) May was improperly denied a jury instruction on the lesser included offense of robbery.
5) The state withheld material exculpatory evidence in violation of Brady v. Maryland.
6) May's Eighth Amendment rights were violated because the Texas sentencing procedures prevented full consideration of the mitigating value of May's good character evidence and inhibited the presentation of evidence regarding May's mental impairment and long history of child abuse.
In its Memorandum Opinion and Order, the district court considered each of these claims. After careful review of the record and the arguments of counsel both in their briefs and at oral argument, we are in substantial agreement with the court's analysis on points one through four. We therefore affirm the district court's denial of relief on those grounds. We also conclude that May is not entitled to relief on points five and six. However, some further discussion of those claims is warranted.
Eight months prior to trial, May requested discovery of all exculpatory evidence, including the Yale Street and Murdaugh offense report files. 1 The Yale Street file was not produced until requested by the federal district court. Although that court found that the Yale Street file did not contain Brady material, it did not consider one piece of evidence--the rifle May asked his mother to retrieve. In closing argument, the State emphasized that May had written his mother and asked that she retrieve a rifle of the same caliber as the one that had been taken from the Western Auto store, claiming that it was additional evidence connecting May to the crime. However, the Yale Street file contains a statement by one Bob Burns describing the .308 caliber rifle that Retha May retrieved as a Montgomery Ward brand, while the one stolen from the Western Auto store was a Revelation brand rifle.
May claims that if he had had this information, he could have rebutted a crucial aspect of the State's case and exposed as irrelevant the only incriminating evidence that was in his own handwriting. He therefore claims that in failing to disclose the Yale Street murder report the State withheld material information in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). We regard this discrepancy as peripheral and harmless. Furthermore, the government is not obligated to furnish information that is fully available to the defendant or that could be obtained through reasonable diligence. United States v. Newman, 849 F.2d 156, 161 (5th Cir.1988). Although the issue regarding the rifles was raised during rebuttal, May could reasonably have anticipated that...
To continue reading
Request your trial
-
Adanandus v. Johnson
...Williams v. Scott, 35 F.3d 159, 163 (5th Cir.1994), cert. denied, ___ U.S. ____, 115 S.Ct. 959, 130 L.Ed.2d 901 (1995); May v. Collins, 904 F.2d 228, 231 (5th Cir.1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991); United States v. Newman, 849 F.2d at 223. See Transcr......
-
West v. Johnson
...v. Collins, 973 F.2d 1175, 1181 (5th Cir.1992), cert. denied, 507 U.S. 1056, 113 S.Ct. 1958, 123 L.Ed.2d 661 (1993); May v. Collins, 904 F.2d 228, 231 (5th Cir.1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991); United States v. Marrero, 904 F.2d 251, 261 (5th Cir.199......
-
Jackson v. State
...is no Brady violation where the information in question could have been obtained by the defense through its own efforts. May v. Collins, 904 F.2d 228, 231 (5th Cir.1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1992)." Johnson v. State, 612 So.2d 1288 Moreover, even if ......
-
Woods v. Johnson
...In such circumstances, counsel is not constitutionally deficient for failing to anticipate Penry. See May v. Collins, 904 F.2d 228, 234 (5th Cir.1990) (Judges Reavley and King concurring), cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991). Cf. Smith v. Collins, 977 F.2d 951......