Mills v. Collins

• Decision Date: 19 February 1991
• Docket Number: No. 89-1851,89-1851
• Parties: Fred Douglas MILLS, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Dept. of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 89

924 F.2d 89

Fred Douglas MILLS, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Dept. of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 89-1851.

United States Court of Appeals, Fifth Circuit.

Feb. 19, 1991.

Fred Douglas Mills, Rosharon, Tex., petitioner-appellant pro se.

Dana E. Parker, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before POLITZ, WILLIAMS, and SMITH, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Fred Douglas Mills, an inmate in the custody of the Texas Department of Corrections, seeks relief under 28 U.S.C. Sec. 2254 from a fifty year sentence for aggravated robbery. Mills claims that his Sixth Amendment rights were violated when the state district judge allowed his trial to proceed with only eleven jurors. Finding no constitutional infirmity in the Texas procedure, we deny Mills' application for habeas relief.

FACTS

A Texas grand jury returned a true bill against Mills for the felony offense of aggravated robbery. The state district court scheduled Mills' trial to begin on Monday, November 10, 1986. The jury had been empaneled. On the morning of the trial, one of the jurors, Jay Stephens, informed the court that his grandfather had died on the previous evening. Juror Stephens requested permission to leave immediately to attend the memorial service.

The trial judge considered four possible solutions to this situation: (1) he could refuse juror Stephens' request and immediately proceed to trial, (2) he could grant the request and postpone the trial until juror Stephens could return, (3) he could empanel a new jury, or (4) he could find juror Stephens disabled and proceed with an eleven member jury. The judge interviewed juror Stephens and found that the juror could return to sit on the jury by Thursday of the same week. The judge also made a finding that juror Stephens would not be able to concentrate effectively upon the trial if he was not allowed to attend his grandfather's memorial service.

The judge then called the remainder of the jury in to discuss the possibility of postponing the trial until Thursday. His interview of the remaining jurors disclosed Based on this information, the judge decided that it would be inappropriate to postpone the case further. He held that juror Stephens was emotionally disabled under the provisions of Tex.Code Crim.Proc.Ann. art. 36.29. The court then proceeded to trial with the remaining eleven jurors. Mills objected to the eleven member jury, but the judge overruled his objection. The jury convicted Mills of aggravated robbery, and he received a sentence of fifty years. The Texas Court of Appeals affirmed the conviction. 747 S.W.2d 818.

additional conflicts that would develop if he attempted to postpone the trial. His clerk also indicated potential scheduling conflicts with other docketed cases if the court delayed Mills' trial. Finally, the court took notice of the substantial amount of time Mills had spent in jail awaiting this trial.

Mills chose not to continue his direct appeal by seeking discretionary review of the conviction from the Texas Court of Criminal Appeals. Instead, he filed a petition for state habeas corpus relief under Tex.Code Crim.Proc.Ann. art. 11.07. The Texas Court of Criminal Appeals denied habeas corpus relief on March 23, 1988. ¹

Mills then filed a petition for federal habeas corpus relief under 28 U.S.C. Sec. 2254 in part challenging as unconstitutional his conviction by an eleven person jury. A magistrate reviewed Mills' claims and recommended denial of the requested relief. The district court adopted the magistrate's findings and conclusions. The district court also denied Mills' request for the certificate of probable cause required by Fed.R.App.P. 22(b) to appeal the decision to this Court. By order dated February 6, 1990, we granted Mills a certificate of probable cause to pursue his habeas claim in this Court limited to a claim of a constitutional violation resulting from Mills' conviction by an eleven member jury. ²

ANALYSIS

The Sixth Amendment constitutional guarantee of trial by jury in criminal cases applies to the states through the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968). The Sixth Amendment does not, however, prescribe the size of the jury a state must provide for a criminal defendant. Two Supreme Court decisions define the scope of the jury guarantee.

In Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1905, 26 L.Ed.2d 446 (1970), the Supreme Court held that a twelve member jury was not an indispensable component of the Sixth Amendment jury trial guarantee. Having decided that a jury of less than twelve satisfies the Sixth Amendment, then in Ballew v. Georgia, 435 U.S. 223, 239, 98 S.Ct. 1029, 1038, 55 L.Ed.2d 234 (1978), the Court held that a jury of less than six does violate the constitutional guarantee. Thus, it is settled that states are free to try criminal defendants by juries having as few as six members.

The State of Texas, of course, is free under the Constitution to require that its criminal convictions require submission to a jury of twelve. Article 36.29(a) of the Texas Code of Criminal Procedure states a norm of a twelve member jury in felony cases. But that same article contains an exception: if one juror dies or becomes "disabled" before the jury is given its charge, the remaining eleven jurors have the power to render a verdict. ³

The state district judge held that this case fell under the exception to article 36.29(a). Juror Stephens was found to be emotionally disabled due to the death of his relative. In turn, this led the judge to conclude that the case could and should be heard by the remaining eleven jurors. The Texas Court of Appeals affirmed Mills' conviction, finding no error in this application of article 36.29(a) by the trial court. Thus, according to the Texas courts, Texas law allowed an eleven member jury to render a verdict against Mills in this case. This interpretation of Texas law is not subject to review by this Court in a habeas proceeding. Seaton v. Procunier, 750 F.2d 366, 368 (5th Cir.), cert. denied, 474 U.S. 836, 106 S.Ct. 110, 88 L.Ed.2d 90 (1985); Moreno v. Estelle, 717 F.2d 171, 179 (5th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984).

Mills' attempt to circumvent the inescapable conclusion that both the United States Constitution and Texas law allow his eleven member jury must fail. His main argument is that the state district judge was required by the Sixth Amendment to obtain his consent prior to proceeding with an eleven member jury. He cites our decision in United States v. Smith, 523 F.2d 788 (5th Cir.1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1475, 47 L.Ed.2d 742 (1976) in support of this contention.

In Smith, we discussed the steps that must be taken to convict a felony defendant in federal court using a jury containing less than twelve members. Relying on the Supreme Court's decision in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), we held that the defendant must expressly and intelligently waive his right to a trial by a jury of twelve members before such a conviction can become effective. Smith, 523 F.2d at 791. But neither Smith nor Patton entitles Mills to habeas relief. Smith involved application of the waiver provision of Fed.R.Crim.P. 23 to a federal criminal conviction. While it is true under the requirements of Rule 23(b) that a federal criminal defendant in the circumstance of this case must consent to a jury with less than twelve members, that fact has no bearing on Mills' state court prosecution.

The evaluation of the Supreme Court's decision in Patton to this case requires specific analysis. The actual question certified to the Court in Patton was whether a criminal defendant could waive his right to a twelve member jury and allow an eleven member jury to decide his case. In reaching its decision, the Court determined that the Sixth Amendment guaranteed a trial by a jury of twelve men. Patton, 281 U.S. at 288, 50 S.Ct. at 254. Before a criminal defendant could be deprived of this constitutionally guaranteed right, the Court required a knowing and intelligent waiver. Id. at 290, 50 S.Ct. at 255. Patton has not been expressly overruled. But in United States v. Spiegel, 604 F.2d 961, 965 n. 9 (5th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980), we said that Williams v. Florida may have sub silentio overruled Patton by holding that the Sixth Amendment did not require a jury of twelve. See also, United States v. Roby, 592 F.2d 406, 408 (5th Cir.) (Williams v. Florida inferentially overruled Patton ), cert. denied, 442 U.S. 944, 99 S.Ct. 2888, 61 L.Ed.2d 314 (1979).

While the issue may be open as to whether Patton has continuing validity, in any event it cannot stand for the proposition that a state must obtain a criminal defendant's consent prior to...