Nethery v. Collins
| Citation | 993 F.2d 1154 |
| Decision Date | 11 June 1993 |
| Docket Number | No. 92-1742,92-1742 |
| Parties | Stephen Ray NETHERY, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Vernon L. Witherspoon, Kirst & Witherspoon, Irving, TX (Court-appointed), for petitioner-appellant.
Margaret P. Griffey, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before POLITZ, Chief Judge, KING and BARKSDALE, Circuit Judges.
Stephen Ray Nethery was convicted of capital murder and sentenced to death by the Texas state court. With all direct appeals and collateral state reviews exhausted he seeks federal habeas relief. The district court denied his application and refused to grant a certificate of probable cause for appeal. We granted CPC. For the reasons assigned, we affirm.
On the evening of February 22, 1981, Nethery met a woman in a Dallas bar. They consumed several strong drinks and he persuaded her to leave the bar with him to go to a secluded spot to smoke marihuana. They drove to an area near a lake in a high crime area and parked. It was well after midnight. Nethery made sexual advances which his companion initially resisted. A pistol fell out of his pocket. He caused her to disrobe. He did likewise and they engaged in sexual relations over an extended period. A police car on patrol spotted them and pulled up alongside. Two officers exited their vehicle; Officer Phillip Brown approached the Nethery auto and shined his flashlight inside. Officer John McCarthy stood by the police auto. As Officer Brown illuminated the interior of Nethery's car the woman was attempting to put on her clothes; Nethery was naked. Officer Brown told them that they could be arrested and instructed them to leave the area.
At this point Brown turned to return to the police cruiser. As he did, Nethery exited his car, rested his arm on the top of his vehicle, said "I'm sorry," and fired three quick shots. He hit Officer McCarthy. Officer Brown returned fire and Nethery ran toward the lake. Brown pursued and chased Nethery into the lake where Nethery finally surrendered. Upon returning to the parked vehicles, Brown found his patrol partner on the ground, calling for help on his mobile radio. Officer McCarthy was rushed to the hospital but subsequently died of the gunshot wound to the back of his head.
Nethery was indicted and tried for capital murder in Dallas County. Pursuant to Texas procedure, 1 the jury first determined his guilt and then considered three statutorily mandated special issues. 2 In response to these questions, the jury found (1) that Nethery's conduct was deliberate and undertaken with the reasonable expectation of McCarthy's death; (2) that there was a probability that Nethery would commit further criminal acts that would constitute a threat to society; and (3) that Nethery's conduct was unreasonable in response to any provocation by Officer McCarthy. Based on these answers, Nethery was sentenced to death by lethal injection. 3
Nethery's appeal to the Texas Court of Criminal Appeals was direct and automatic. That court found no reversible error in any of his 55 points of error. 4 The Supreme Court denied his petition for certiorari, rendering his conviction final, in early 1986. 5
Nethery next turned to the writ of habeas corpus. The same judge who had presided over his trial denied his first state application and resentenced him to death. Nethery maintains that at this point the judge disclosed his close personal relationship with Officer McCarthy. Nethery appealed the denial to the Texas Court of Criminal Appeals, adding a claim of judicial bias. That court again denied relief.
Nethery thereafter filed his first application for a federal writ, which was dismissed for failure to exhaust a claim. He did nothing until his execution was rescheduled, at which point he returned to the state district court again seeking habeas relief. This time a different judge was assigned to the case. The court found no factual or legal basis for relief. The Texas Court of Criminal Appeals affirmed.
Nethery then filed the instant application for federal habeas. The district court assigned the matter to a magistrate judge who held an evidentiary hearing. The magistrate judge found no credible evidence supporting Nethery's claim of judicial bias and recommended that the application be denied. The district court adopted the recommendation and denied an application for CPC. We granted CPC.
Nethery claims that his trial was tainted by the presiding judge's failure to disclose a close personal friendship with the deceased officer. He contends that the relationship did not become apparent until the judge went into "an emotional tirade" during a resentencing hearing on Nethery's application for state habeas relief. The record of that hearing indicates that the judge sentenced Nethery to die on McCarthy's birthday and then immediately called a short recess. After returning, the judge directed the clerk to send a copy of the death warrant to Nethery so he could "study it" before he died. Nethery claims the judge also professed a close friendship to the victim, although the record is silent in this respect. The state contends that the judge simply was appalled by the senseless killing.
The accused in any criminal trial is guaranteed the right to an impartial tribunal. 6 To secure relief on this basis, Nethery had to establish that the judge was influenced by interests apart from the administration of justice and that this bias or prejudice resulted in rulings based on other than facts developed at trial. 7
Nethery's conclusion of bias is premised on the judge's alleged friendship with Officer McCarthy. The state habeas court received conflicting affidavits from the trial judge and Nancy Berry, Nethery's friend and spiritual advisor, regarding the judge's statements at the resentencing hearing. Berry claimed to have heard the judge profess a friendship with the victim; the judge denied this and maintained that he was not personally acquainted with the victim. The record of the resentencing hearing is silent with respect to the judge's supposed reference to a friendship with the victim, corroborating the judge's version of events. The state habeas court found as a matter of fact that the judge was not a personal friend of the victim. Because it did not follow on the heels of a full and fair hearing, this finding is not entitled to the statutory presumption of correctness. 8
Berry testified in the evidentiary hearing conducted a quo, stating, as she had in her affidavit, that she heard the trial judge profess a friendship with the decedent during the resentencing hearing. The magistrate judge, citing her selective recall of events, chose to discredit her testimony and concluded that the "most petitioner has shown is that the trial judge was offended and upset by the brutal and senseless nature of petitioner's crime." The magistrate judge found the record of the hearing and the state trial judge's affidavit more credible. Rule 52(a)'s command of deference to findings of fact, particularly when, as here, those findings are premised on credibility assessments, compels our rejection of this assignment of error. 9
It is well established that the criminal defendant has no constitutional right to a grand jury indictment before trial in state criminal proceedings. 10 A deficient indictment will, however, provide a basis for federal habeas relief if the defect is so significant that the convicting court lacked jurisdiction under state law. 11
Under Texas law, a grand jury is composed of twelve grand jurors. 12 Once the grand jury is impaneled, nine grand jurors constitute a quorum for doing business. 13 A review of pertinent statements in Texas decisions, mostly in dicta and mostly from the late 1800s and early part of this century, suggests that a conviction after indictment by a grand jury impaneled with more or less than 12 members is void. 14 Assuming, per arguendo, that these cases reflect the current state of Texas law, and that proof of the impanelment of less than 12 grand jurors would constitute grounds for reversal on collateral attack, Nethery has failed to establish that controlling fact herein.
Nethery claims to have learned from a fellow inmate, who was indicted by the same grand jury, that the grand jury was not lawfully formed. During the course of the evidentiary hearing in this case, Nethery introduced the transcript of a hearing in his fellow inmate's case in which the foreman of the grand jury noted in passing that only nine grand jurors deliberated throughout the grand jury's tour of duty. The state objected to the introduction of this transcript because the issue in the previous case was whether the indictment had been forged; thus, there never had been an opportunity to develop fully the testimony from the foreman with respect to the number of grand jurors. The foreman did not testify in the evidentiary hearing before the magistrate judge.
Assuming, per arguendo, that the foreman's testimony in an unrelated proceeding was properly admitted under a hearsay exception, and that this testimony can fairly be read to establish the presence of only nine grand jurors during deliberation of both cases, the same result obtains. Texas law clearly provides for indictment by a quorum of nine grand jurors; the foreman's testimony, even if accepted as reliable, would, in fairness, establish only that this number was present when the Nethery indictment was handed up. Hugh Lucas, an Assistant District Attorney, testified that he supervised the operations of the grand jury on the day Nethery was indicted, that...
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