McCoy v. Lynaugh

• Decision Date: 22 May 1989
• Docket Number: No. 89-2502,89-2502
• Citation: 874 F.2d 954
• Parties: Stephen Albert McCOY, Petitioner-Appellant, v. James A. LYNAUGH, Director Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 954

874 F.2d 954

Stephen Albert McCOY, Petitioner-Appellant, v. James A. LYNAUGH, Director Texas Department of Corrections,

Respondent-Appellee.

No. 89-2502.

United States Court of Appeals, Fifth Circuit.

May 22, 1989.

Karen Zellars, Houston, Tex., for petitioner-appellant.

Robert S. Walt, Atty. Gen., Dana E. Parker, Asst. Atty. Gen., Enforcement Div., Austin, Tex., for respondent-appellee.

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

Before WILLIAMS, JONES, and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Petitioner Stephen Albert McCoy was convicted of capital murder and sentenced to death. The district court denied his petition for writ of habeas corpus and stay of execution and declined to hold an evidentiary hearing. Before us are McCoy's motions for stay of execution and certificate of probable cause to appeal, the latter of which may only be granted if a petitioner makes a "substantial showing of the denial of a federal right." Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). Finding that McCoy's claims are either procedurally barred or lack merit, we deny the motions for stay of execution and certificate of probable cause.

I. FACTS AND PROCEDURAL BACKGROUND

The facts of McCoy's capital crime come from his taped confession introduced at his trial and the testimony of an accomplice to the crime. On December 31, 1980, Cynthia Darlene Johnson was in an automobile accident on a Houston freeway and suffered a head injury. McCoy, James Paster, and Gary LeBlanc drove by and asked Johnson whether she needed help. She responded that she did not. McCoy, Paster, and LeBlanc dropped off the female passengers in their car and returned to the site of Cynthia Johnson's accident. McCoy persuaded her to get into their car. They drove to a warehouse where McCoy and the others forced her to perform various sexual acts with each of them. LeBlanc testified that McCoy and Paster threatened her with a gun during the rape. McCoy admitted in his confession that he and LeBlanc then held Cynthia Johnson while Paster strangled her with a cord. Paster then drove a nail up her nostril. They placed her body in the trunk of the car, picked up their other female companions and finally discarded Cynthia Johnson's body.

At the punishment phase of McCoy's trial, additional portions of McCoy's taped confession were introduced in which he described his role in two other grisly slayings. On October 25, 1980, he participated in the contract murder (for $1,000) of Robert Howard. Although it was Paster who sneaked up behind Howard and shot him in the head with a pistol, McCoy admitted that he was armed with a shotgun at the time. Sometime in mid-November, McCoy, Paster and LeBlanc forced Diana Trevino Oliver into their car, took her to a field and raped her. McCoy admitted that he stabbed her several times in the chest. Diana Oliver's body was found on November 19, 1980 with knife and gun wounds.

On April 19, 1983, McCoy was indicted for the capital murder of Cynthia Johnson. On July 26, 1984, after a three day trial, the jury found McCoy guilty of capital The State set McCoy's execution for June 25, 1987. On June 12, McCoy filed a pro se application for stay of execution in the United States District Court for the Southern District of Texas. ¹ The application for stay was granted by the federal district court on June 19, 1987. On July 28, 1987, the district court appointed Karen Zellars to represent McCoy and directed McCoy to file an amended petition within thirty days (later extended for an additional sixty days). On October 29, 1987, the federal district court granted McCoy's motion to dismiss the action without prejudice to allow McCoy to raise unexhausted claims in state court.

murder, and the next day the jury answered the special issues in the affirmative and McCoy was sentenced to death. On June 18, 1986, McCoy's conviction and sentence were affirmed by the Texas Court of Criminal Appeals, McCoy v. State, 713 S.W.2d 940 (Tex.Crim.App.1986) (en banc). Certiorari was denied by the Supreme Court on March 23, 1987, McCoy v. Texas, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987).

On January 27, 1988, McCoy filed his first petition for writ of habeas corpus in state court. That petition was supplemented on January 20, 1989. On February 20, 1989, the state habeas court issued its findings of fact and conclusions of law, recommending denial of the writ. On February 23, the state habeas court scheduled McCoy's execution for March 29, 1989. On March 7, the Texas Court of Criminal appeals denied the writ application, finding the trial court's findings and conclusions to be supported by the record. Ex parte McCoy, No. 18,092-01 (Tex.Crim.App. March 7, 1989). McCoy's motion for rehearing was denied on March 10.

On March 23, McCoy filed his second writ of habeas corpus in state court alleging that he was incompetent to be executed. He concurrently filed a habeas petition in the federal district court and a request for stay of execution. Later that day, the state court modified McCoy's execution date for the last time. Currently, McCoy is scheduled to be executed before sunrise on May 24, 1989. The federal district court dismissed McCoy's federal habeas petition without prejudice once again to allow him to exhaust his state remedies. On April 19, McCoy filed a supplemental habeas petition in state court. On April 27, the state habeas court issued its factual findings and legal conclusions, and recommended that the writ be denied. The Court of Criminal Appeals denied the writ based on the findings and conclusions of the state habeas court. Ex parte McCoy, No. 18,092-03 (Tex.Crim.App. May 9, 1989).

On May 10, McCoy filed a petition for writ of habeas corpus in the federal district court, which comprised the grounds of his Supplemental Petition filed in state habeas court, and requested a stay of execution. At a hearing on May 16, McCoy moved to amend his federal habeas petition to include the grounds for relief earlier dismissed without prejudice. The district court granted the motion. The combined federal habeas petition raises thirteen grounds for relief.

On May 19, the district court issued its factual findings and legal conclusions. McCoy v. Lynaugh, Civ. Action No. H-89-912, mem. op. (S.D.Tex. May 19, 1989). In a thorough and well reasoned opinion, the district addressed and denied each ground for relief, relying on procedural default and denial on the merits. For essentially the same reasons, we affirm the denial of relief for the petitioner.

II. CLAIMS PROCEDURALLY DEFAULTED

The following grounds for relief were not raised at trial in accordance with Texas' contemporaneous objection rule and are procedurally barred in the federal court:

(1) that McCoy was denied due process by the state's use of an altered tape-recording of his confession (Ground for Relief Nine);

(2) that the Texas Capital Sentencing Statute is unconstitutional in that it prohibits the informing of the jury that a sole juror's negative answer to either of (3) that the Texas Capital Sentencing Statute is unconstitutional because it precluded McCoy's counsel from investigating and presenting evidence in mitigation of the death sentence (Ground Thirteen).

the special issues will preclude the imposition of the death penalty (Supplemental Petition, Ground for Relief Twelve); and

In its ruling on McCoy's first state habeas petition, the state habeas court concluded that "[Petitioner] is procedurally barred from raising ground for relief ten [federal Ground for Relief Nine] wherein he complains that the tape-recorded confession admitted into evidence was altered such that [Petitioner] was denied a fair trial and due process of law." Ex parte McCoy, No. 377288-A (Dist. Ct. Harris County, 177th Judicial Dist. of Texas, Feb. 20, 1989) (Conclusion of Law 13). The Texas Court of Criminal Appeals denied relief on this ground, noting that "[t]he findings and conclusions entered by the [state habeas] court are supported by the record." Ex parte McCoy, No. 18,092-01 (Tex.Crim.App. March 7, 1989).

In its ruling on McCoy's Supplemental Petition, the state habeas court concluded that "[Petitioner] is procedurally barred from raising supplemental ground[s] for relief three [and four] [federal Supplemental Petition Ground for Relief Twelve and Thirteen] in that he did not object at the time of trial to the capital murder sentencing scheme on the basis that it is unconstitutional for the reasons articulated in [those] ground[s]." Ex parte McCoy, No. 377288-B (Dist.Ct. of Harris County, 177th Judicial Dist. of Texas, April 27, 1989) (Conclusions of Law 4 and 5). The Texas Court of Criminal Appeals denied relief "on the basis of the [state habeas] court's findings of fact and conclusions of law." Ex parte McCoy, 18,092-03 (Tex.Crim.App. May 9, 1989).

Thus, under Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977), we are procedurally barred from considering these issues on federal habeas review unless McCoy can show "good cause" for his noncompliance with state procedures and actual "prejudice" resulting from the alleged constitutional violation. See also Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Without reaching the issue of prejudice, we find that McCoy has failed to make the required showing of "good cause" for his noncompliance with state procedures.

McCoy does not attempt to explain his failure to object to the introduction of the tape-recorded confession on the ground that it was altered. Such a ground for objection is certainly not novel or unknowable. Second, in King v. Lynaugh, 868 F.2d 1400, 1402 (5th Cir.1989), we held that King was procedurally barred from raising whether the jury was properly instructed "on what would be the consequences...