Riles v. McCotter

• Decision Date: 10 September 1986
• Docket Number: No. 86-2167,86-2167
• Citation: 799 F.2d 947
• Parties: Raymond G. RILES, Petitioner-Appellant, v. O.L. McCOTTER, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 947

799 F.2d 947

Raymond G. RILES, Petitioner-Appellant, v. O.L. McCOTTER, Director, Texas Department of Corrections Respondent-Appellee.

No. 86-2167.

United States Court of Appeals, Fifth Circuit.

Sept. 10, 1986.

Will Gray, Simonton, Tex., for petitioner-appellant.

Paula C. Offenhauser, Leslie A. Benitez, Charles A. Palmer, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

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

Before RUBIN, JOHNSON and JONES, Circuit Judges.

EDITH HOLLAN JONES, Circuit Judge.

The petitioner, Raymond G. Riles, is scheduled to be executed on September 17, 1986 for a murder he committed in 1974. Having had his motions for a certificate of probable cause to appeal and stay of execution denied by the district court, Riles moves this Court for the same relief. Having heard oral argument on the motions, the Court finds that there has been no substantial showing by Riles of a denial of a federal right, and his motion for a certificate of probable cause is therefore DENIED.

I. FACTS

On December 11, 1974, Riles robbed and shot thirty-one year-old John Thomas Henry. ¹ Two days later, Henry died and Riles was charged with his murder. Riles was subsequently tried before a jury, convicted of capital murder, and sentenced to death. Upon appeal, the conviction was reversed and the case remanded for a new trial. Riles v. State, 557 S.W.2d 95, 99 (Tex.Crim.App.1977). The second trial also resulted in Riles's conviction for capital murder punishment again was death. Appeal of the second conviction, however, was not met with success. Riles v. State, 595 S.W.2d 858 (Tex.Crim.App.1980) (en banc). Thereafter, Riles sought indirect relief via a writ of habeas corpus in the state trial court and Texas Court of Criminal Appeals, but both applications were denied.

Having exhausted his state remedies, Riles applied for a writ of habeas corpus in the United States District Court for the Southern District of Texas, and its denial precipitates this appeal. In support of his current motions for a certificate of probable cause and a stay of execution, Riles asserts several grounds of error.

II. CERTIFICATE OF PROBABLE CAUSE

Before Riles can prosecute his appeal in this court, he must obtain a certificate of probable cause. Fed.R.App.P. 22(b). Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). The district court has already denied Riles a certificate, and unless he is able to establish a "substantial showing of the denial of [a] federal right," we will also deny his motion for the certificate. Barefoot, 463 U.S. at 893, 103 S.Ct. at 3394 (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972)). To make his showing, Riles "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are 'adequate to deserve encouragement to proceed further.' " Id. at 893 n. 4, 103 S.Ct. at 3394-95 n. 4 (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980) (emphasis in original)).

III. EXCLUSION OF VENIREMEMBERS.

Riles's first complaint concerns the state trial court's decision to exclude for cause two veniremembers because of their views on capital punishment. The first veniremember excused by the court admitted that his deliberations would be influenced by a possible death sentence, and that given a choice, he would choose a sentence other than death. ²

The other excluded veniremember, Ms. Simpson, unequivocally stated that she could not impose capital punishment for a murder that occurred during the course of an armed robbery. In fact, anything short of a brutal "butcher" of a victim would result in her answering the special verdicts in such a way so as to defeat a penalty of death. ³

Riles contends that the standards for exclusion of prospective jurors announced in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) should be applied over those set out in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). This argument is unpersuasive, because the Supreme Court in Witt merely clarified Witherspoon and reaffirmed Adams as the proper standard to use when considering the exclusion of a potential juror. Wicker v. McCotter, 783 F.2d 487, 493 (5th Cir.1986), cert. denied, --- U.S. ----, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986). There is no inconsistency among the tests. Adams prohibits a veniremember from being challenged for cause due to his views on the death penalty "unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Adams, 448 U.S. at 45, 100 S.Ct. at 2526. Here, both veniremembers unequivocally stated that they could not perform their duties impartially in accordance with the court's instructions. Given these veniremembers' principles, they would have been unable to satisfactorily perform their duties as jurors.

Further support for this conclusion arises from the deference and presumption of correctness afforded to a state court's factfindings concerning exclusion of potential jurors. Wainwright v. Witt, 469 U.S. at 426-30, 105 S.Ct. at 853-55. Reviewing the two veniremembers' testimony and the state court's decision to exclude these individuals from the jury in this light, it is evident that Riles has failed to make a "substantial showing of the denial of [a] federal right" with respect to this particular issue. ⁴

IV. VOIR DIRE EXAMINATION OF THE JURY

Riles complains that the voir dire examination was conducted in such a manner that the State's burden of proof on the punishment issue was significantly reduced. Specifically, Riles alleges that the trial court stressed the proof needed to support the aggravating circumstances and disregarded the effect of possible mitigating evidence. By so doing, he contends, the court committed a number of the jurors in advance to return affirmative answers on the two punishment issues.

Because Riles failed to object to the state trial court's lengthy and comprehensive voir dire, and because Riles's counsel was given an opportunity to conduct his own examination of the jurors (thus allowing him to cure any prejudice created by the court), the district court, relying on Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), denied federal habeas review on this issue.

We agree with the district court's decision. In Texas, a party must voice his objection to the conduct he considers erroneous at the time it occurs. "Failure to object waives error, if any, that is presented." E.g. Green v. State, 682 S.W.2d 271, 275 (Tex.Crim.App.1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1407, 84 L.Ed.2d 794 (1985). By failing to object timely during voir dire to the instructions or questions he deemed inappropriate, Riles is barred from federal habeas review on this issue "absent a showing of 'cause' and 'prejudice.' ". Sykes, 433 U.S. at 87, 97 S.Ct. at 2506.

"[C]ause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, --- U.S. ----, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986). Other than Riles's claim of ineffective assistance of counsel, which is discussed in Section VII, infra, of this opinion, there is nothing in the record which would establish cause for the default. Riles does not even allege that any external factor hindered or prevented him from complying with the contemporaneous objection rule.

Application of the procedural default rule is particularly appropriate to an alleged error in voir dire because, if an error is then made, it may readily be corrected before a jury is empanelled. Moreover, no objection is made to the court's instructions to the jury in this regard, and the jury's oath requires them to return a verdict in accordance with those instructions, not the preliminary examination. If despite the procedural default bar to Riles's voir dire challenge, we reached the issue, we would find that the examination conducted by the state trial court did not deprive Riles of any constitutional right. As part of the voir dire examination, courts in Texas are required by statute to "propound to the entire panel of prospective jurors questions concerning the principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion." Tex.Code Crim.Proc.Ann. art. 35.17, Sec. 2 (Vernon Supp.1986). When reviewed as a whole, the record of the voir dire examination reveals the court's sincere attempts to comply with this statute; the court explained the standards involved in the case, the burdens of proof on the parties, and the insanity defense raised by Riles.

Instead of looking at the record as a whole, however, Riles focuses on the court's attempts to explain the two issues submitted during the penalty phase of trial. ⁵ With respect to these two issues, however the court did nothing more than explain the standards and provide the jury with guidelines to use in their deliberations. Riles has demonstrated nothing which would indicate the court abused its discretion in its examination. See Milton v. Procunier, 744 F.2d 1091, 1096 (5th Cir.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1984); Weaver v. State, 476 S.W.2d 326 (Tex.Crim.App.1972); Cook v. State, 398 S.W.2d 284 (Tex.Crim.App.1965), cert. denied, 384 U.S. 966, 86 S.Ct. 1599, 16 L.Ed.2d 678 (1966). ⁶

Because Riles failed to raise his challenge to the court's voir dire examination in a timely manner, it is waived. Even had he not waived this argument, he has made no...