Mayo v. Lynaugh
| Decision Date | 23 January 1990 |
| Docket Number | No. 89-1127,89-1127 |
| Citation | 893 F.2d 683 |
| Parties | Randy Dale MAYO, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert L. McGlasson, Austin, Tex. (court appointed), for petitioner-appellant.
William C. Zapalac, Asst. Atty. Gen. and Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before RUBIN, KING, and HIGGINBOTHAM, Circuit Judges.
ON PETITION FOR REHEARING
Randy Dale Mayo, a Texas state prisoner sentenced to death by lethal injection, requests rehearing by this panel of his claim that the jury was unconstitutionally prevented from considering all of the mitigating evidence he presented at the sentencing phase of his trial, in violation of Franklin v. Lynaugh 1 and Penry v. Lynaugh. 2 Mayo argues that, contrary to this panel's conclusion in initially denying rehearing, he did not procedurally default his Penry claim because the state itself had waived the procedural default argument. For the reasons stated below, we agree with Mayo's argument, and reverse and remand for further proceedings in accordance with this opinion.
The facts regarding earlier proceedings in this case are set forth in our previous opinions, and we will only summarize them. In January 1985, Mayo was convicted by a Texas jury of capital murder while in the course of committing an aggravated sexual assault. After a separate sentencing hearing, the jury returned affirmative answers to the two special issues submitted pursuant to the Texas capital sentencing statute, 3 and the court sentenced Mayo to death by lethal injection. His conviction and sentence were affirmed on direct appeal to the Texas Court of Criminal Appeals, 4 and the trial court denied his subsequent motions for collateral review.
Two days before the date the trial court had set for his execution, Mayo filed a motion for a stay of execution and for a writ of habeas corpus in the United States District Court for the Northern District of Texas, San Angelo Division, and that court stayed the execution. After two evidentiary hearings before a United States Magistrate, both conducted after new counsel had been appointed at Mayo's request, the magistrate recommended that the writ be denied. However, after the state had expressly waived its right to seek exhaustion in state court, the district court allowed Mayo leave to file a second amended petition asserting a claim based on Franklin v. Lynaugh, 5 this circuit's decision in Penry v. Lynaugh, 6 and the Supreme Court's grant of certiorari in Penry v. Lynaugh. 7 Mayo argued both that the Texas capital sentencing statute was facially unconstitutional and that it was unconstitutional as applied to his case, likening his presentation of mitigating evidence at the sentencing phase of trial to the circumstances of Penry and distinguishing the circumstances of Franklin. After conducting a hearing to determine whether Mayo had additional evidence regarding mitigating circumstances, the district court rejected his challenge, adopted the findings and conclusions of the magistrate, denied the writ of habeas corpus, and vacated the stay of execution.
On appeal, this court reviewed the district court's disposition of Mayo's Franklin-Penry claim, noting Mayo's contentions that "the jury was precluded from giving effect to all the mitigating evidence submitted during the sentencing phase of his trial" and "that the Texas capital punishment scheme is unconstitutional because the jury is prevented from considering mitigating evidence except on the issues of the deliberateness of the murder and the probability of future dangerousness." 8 In an opinion released four days after the Supreme Court's decision in Penry, we stated 9
Both parties petitioned for rehearing on the basis of the Supreme Court's decision in Penry. Although we modified our opinion accordingly, we denied the petition for rehearing on two bases. We first observed that Mayo's failure to raise his claim at trial constituted a procedural default under Texas law, requiring him to demonstrate cause-and-prejudice to redeem the claim; we further noted that circuit precedent on the issue of cause-and-prejudice for failure to raise a Penry claim at trial had not been consistent. 10 "Assuming, however, without deciding that the merits of the claim [we]re before us," we also denied relief on the basis that Mayo had not sufficiently articulated "how the jury was unable to express its reasoned moral response and give effect to his mitigating evidence." 11
Mayo's second petition for a rehearing argues for the first time that his Franklin-Penry claim is not procedurally barred because the state waived the defense, and argues anew that his claim is entitled to relief on the merits under Franklin and Penry. The state opposes this petition. While recognizing the interest in tempering collateral challenges to capital sentences, 12 we grant rehearing to correct our previous opinions. 13
Mayo argues that the state waived the issue of procedural default in two ways: first, by explicitly waiving exhaustion of Mayo's Franklin-Penry claim during argument before the district court, the state also implicitly waived the issue of procedural default; second, by waiting until its own petition for rehearing to argue that Mayo had procedurally defaulted his claim, the state effectively waived the issue.
Mayo's first argument asserts that whatever the correct view of the law, the state perceived that by waiving exhaustion it was also waiving the issue of procedural default, and that the state's intent should govern our construction of the waiver. The two issues, however, are different; 14 indeed, the argument that Mayo's claim has been procedurally defaulted would maintain that he had failed to comply with the Texas procedural rule requiring objection at trial, 15 and that therefore all state (and federal) review of his claim was foreclosed, not ripe for exhaustion. 16 The state did not implicitly waive procedural default by exercising its conditional authority to waive exhaustion. 17
This circuit, however, has consistently held that a state waives a procedural-bar argument by failing to present the issue in district court. 18 In this case, the state did not raise its procedural default argument until it filed a petition for rehearing of our decision on appeal. The state argues that it has made no waiver because its defense was fatally impaired by Mayo's failure to raise the Penry claim in state court. Such an exception, of course, would protect all waivers of procedural default defenses, and would allow the state to raise the defense at any juncture it chose. The state, however, does not request such a broad rule. Instead, it argues that it is excused because Teague v. Lane 19 held for the first time that federal habeas review is precluded for a claim that was not raised in state court if it is clear that the state court would have imposed a procedural bar and refused to consider the merits of the claim.
The Court in Teague merely observed that its imposition of the procedural default rule was consistent with the requirement of Harris v. Reed 20 that the last state court rendering a judgment must have "clearly and expressly" rested its judgment on a state procedural bar before a federal court may bar consideration on that ground, since the Harris rule assumed that a state court has had the opportunity to address the claim. 21 Such a distinction has little purchase in the present situation: the issue here is not the opportunity afforded state courts, but the opportunity afforded the respondent to raise the issue, and it cannot be disputed that the state could have responded to Mayo's Franklin-Penry claim by raising the issue of procedural default before the federal district court. Moreover, the distinction observed in Teague was scarcely so new as to excuse the state's delay. The need to distinguish Harris v. Reed first arose on the day that Harris and Teague were both announced, and Teague cited Engle v. Isaac 22 for the proposition that a procedural default rule may be applied to a claim that has never been raised in state court. 23 Finally, although the Teague decision was rendered before Mayo filed his opening appellate brief, the state's first suggestion of procedural default came in its petition for rehearing after this court had rendered its first opinion.
The state also cites our decision in Wiggins v. Procunier 24 in support of the argument that if a procedural bar can be "raised at any point in the district court proceedings," 25 it can be raised at any point in the appellate proceedings, including a petition for rehearing. But although it may be permissible to allow a district court any opportunity to evaluate the alleged procedural default, 26 the same flexibility cannot be posited to allow raising a procedural default defense at any juncture in proceedings. 27
Although Mayo in turn has raised the issue of the state's waiver of the procedural default issue at a later juncture than was necessary, the state's briefs do not suggest that he has therefore waived his waiver argument. The blame for the lack of consideration of the procedural default issue in the district court and on the initial appeal must rest with the state in any event, and no significant burden is imposed by the delay from the first, mutually requested consideration...
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