Nichols v. Collins
| Decision Date | 31 August 1992 |
| Docket Number | Civ. A. No. H-92-36. |
| Citation | 802 F. Supp. 66 |
| Parties | Joseph Bennard NICHOLS, Petitioner, v. James A. COLLINS, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
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Michael Kuhn, Sarah Pierce Cowan, Bracewell & Patterson, Houston, Tex., for petitioner.
Dana E. Parker, Atty. Gen. of Tex., Enforcement Div., Austin, Tex., William J. Delmore, III, Harris County Asst. Dist. Atty., Houston, Tex., for respondent.
Pending before the Court are the original petition for writ of habeas corpus (Document # 1), the motion to reopen evidentiary hearing (Document # 37), and the motion for expansion of the record (Document # 42) all filed by petitioner Joseph Bennard Nichols ("Nichols"). Having considered the motions, the submissions of both Nichols and the respondent James A. Collins ("Collins") and the applicable law, this Court determines that the petition should be granted and the motions should be denied.
Nichols was indicted in Cause No. 323,836 in the 178th District Court of Harris County, Texas for the offense of capital murder in connection with the death of Claude Shaffer, Jr. ("Shaffer"). Shaffer, a seventy year-old employee of Joseph's Delicatessen and Grocery, was killed on October 13, 1980 during the course of the robbery of that establishment committed by Nichols and another, Willie Ray Williams ("Williams"). Nichols and Williams were tried separately for the crime.
In July, 1981, Nichols was tried for capital murder in connection with the above offense ("Nichols I"). The Court declared a mistrial in that action based upon the jury's inability to answer the second special issue at the conclusion of the punishment phase.
In March, 1982, Nichols was again tried for capital murder ("Nichols II"). He was convicted, and after the jury answered the three special issues affirmatively during the sentencing phase, the court assessed punishment of death by lethal injection. On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence. See Nichols v. State, 754 S.W.2d 185 (Tex.Crim.App.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 819, 102 L.Ed.2d 808 (1989).
Nichols subsequently filed a state application for writ of habeas corpus pursuant to the Texas Code of Criminal Procedure, article 11.07 (Vernon Supp.1991). The trial court held an evidentiary hearing upon two issues (ineffective assistance of counsel and statistical challenge to the Texas death penalty statute as unconstitutional as applied) and subsequently issued findings of fact and conclusions of law denying all relief requested. On December 12, 1991, the Texas Court of Criminal Appeals denied the relief which Nichols requested.
Nichols now seeks federal habeas corpus relief. This is Nichols first federal habeas corpus petition.
Upon review of Nichols' petition for writ of habeas corpus and application for stay of execution, this Court determined that Nichols was entitled to an additional, limited evidentiary hearing on issues of prosecutorial misconduct. Therefore, this Court granted a stay of execution on January 10, 1992.
Nichols has presented the following issues to this Court:
1. Whether the special issues precluded the jury from considering or giving effect to mitigating evidence presented on behalf of petitioner.
2. Whether the special issues precluded the jury from considering or giving effect to the mitigating evidence that the petitioner did not kill the deceased.
3. Whether the prosecutor's blatant misconduct violated the doctrines of judicial estoppel, collateral estoppel, due process and the duty to seek justice.
4. Whether the petitioner's codefendant should have been compelled by the court to testify for the defense because he waived his right to remain silent when he testified at the first trial.
5. Whether the state had no power to retry petitioner.
6. Whether the prosecutor knowingly failed to correct perjured testimony that his star witness gave about her cooperation agreement with the state and he created the false impression in his summation that the witness was unaware of the promise of leniency that she received in exchange for her testimony.
7. Whether petitioner was denied the assistance of counsel at two lineups.
8. Whether the Texas death penalty statute and its consistent interpretation by the court of criminal appeals operated to deny petitioner his rights under the sixth, eighth, and fourteenth amendments to the United States Constitution.
9. Whether petitioner was denied effective assistance of counsel at trial because one of his lawyers had a conflict of interest between his representation of petitioner and his representation of defense witness Jose Nino.
10. Whether petitioner was denied effective assistance of counsel at both stages of his trial.
11. Whether petitioner was denied assistance of counsel on direct appeal when his court appointed lawyer was held in contempt, incarcerated and compelled to write the appellate brief while he was in jail.
12. Whether petitioner was denied a meaningful direct appeal.
13. Whether petitioner had ineffective assistance of counsel.
14. Whether the prosecutor injected the arbitrary factors of religion and sex into the trial.
15. Whether the prosecutor's evidence and argument concerning the character of the deceased rendered the punishment phase fundamentally unfair.
16. Whether the prosecutor highlighted petitioner's race during voir dire and exhibited his own bias against members of that racial minority.
17. Whether the prosecutor minimized the jury's sense of responsibility for participating in the determination of the appropriate penalty in a capital case by incorrectly telling them during voir dire that death sentences imposed by juries are never carried out.
18. Whether petitioner's eighth and fourteenth amendment rights to proffer mitigating evidence were violated when the court sustained the prosecutor's objection to mercy pleas from his character witnesses.
19. Whether Article 37.071(A) of the Texas Code of Criminal Procedure was unconstitutionally applied because the court refused to define the operative terms when it instructed the jury.
20. Whether the Texas capital punishment laws are unconstitutional as applied.
21. Whether the automatic imposition of a death sentence when the jury affirmatively answered the special issues violated the eighth amendment prohibition against mandatory death sentences for a narrowly defined class of capital murderers.
22. Whether veniremen were erroneously removed for cause.
This Court is authorized by 28 U.S.C. § 2254(a) to "entertain an application for a writ of habeas corpus in behalf of a person ... who is in custody in violation of the Constitution or law or treaties of the United States. 28 U.S.C. § 2254(a) (1977). While "the role of federal habeas proceedings are important in assuring that constitutional rights are observed ... federal courts are not forums in which to relitigate state trials." Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983). "Even less is federal habeas a means by which a defendant is entitled to delay an execution indefinitely." Id. A federal habeas corpus court is without authority to correct wrongs other than those "wrongs of federal constitutional dimension." Smith v. Phillips, 455 U.S. 209, 211, 102 S.Ct. 940, 943, 71 L.Ed.2d 78 (1982).
This Court notes that 28 U.S.C. § 2254 affords a presumption of correctness to any factual determinations made by the state court after a full and fair evidentiary hearing. The presumption of correctness does not apply when, among other reasons, (1) the merits of the factual dispute were not resolved in the State court hearing, (2) the material facts were not adequately developed at the State court hearing, or (3) a federal court concludes from consideration of that part of the record of the State court proceeding in which the determination of such factual issue was made that such factual determination is not fairly supported by the record. Additionally, a federal habeas corpus petitioner may overcome the presumption of correctness by presenting convincing evidence that the factual determination by the State court was erroneous.
Nichols urges this Court to refuse to apply the presumption of correctness to the state court findings of fact due to alleged irregularities outlined below (See Section H infra). This Court determines that the irregularities neither fall within the statutory provisions which authorize this Court to disregard fact findings nor do they amount to convincing evidence that all fact findings were erroneous. Therefore, upon a review of the entire record, along with this Court's supplemental evidentiary hearing, the Court will evaluate each finding of fact individually to determine the proper application of the presumption of correctness.
Through grounds for relief one and two Nichols argues that the special issues precluded the jury from considering or giving effect to mitigating character evidence and to mitigating evidence that the petitioner did not kill the deceased.
In Penry v. Lynaugh, the Supreme Court identified two situations in which the capital sentencing statute has the potential for unconstitutional application. 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Where the mitigating force of a defendant's proffered evidence about his background, character, or the circumstances of the offense (1) is not relevant to the statutory special issues or (2) has relevance to his culpability beyond the scope of those issues, the jury has no vehicle for expressing a "reasoned moral response" to that evidence. Id. at 320, 109 S.Ct. at 2948. The appropriate inquiry is "whether the jury has applied the challenged instruction in a way that prevents the...
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