Robinson v. Wade

• Decision Date: 20 September 1982
• Docket Number: No. 81-1344,81-1344
• Citation: 686 F.2d 298
• Parties: Howie Ray ROBINSON, Petitioner-Appellant, v. Henry WADE, Winfield Scott, Richard Mays and Bill Shaw, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 298

686 F.2d 298

Howie Ray ROBINSON, Petitioner-Appellant, v. Henry WADE, Winfield Scott, Richard Mays and Bill Shaw Respondents-Appellees.

No. 81-1344.

United States Court of Appeals Fifth Circuit.

Sept. 20, 1982.

As Modified Nov. 19, 1982.

Edward W. Gray, Dallas, Tex. (Court-Appointed), for petitioner-appellant.

J. Steven Bush, Asst. Dist. Atty., Dallas, Tex., for respondents-appellees.

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

Before WISDOM, JOHNSON and WILLIAMS, Circuit Judges.

JOHNSON, Circuit Judge:

Howie Ray Robinson, three times convicted and sentenced to death for the murder of William Moon and three times granted a new trial, has asked this Court to order his release from the custody of the State of Texas on the ground that the State's planned fourth prosecution of him is barred by the federal Constitution. The district court found that Robinson's reprosecution would not offend the double jeopardy clause and that his other claims were not properly before it. This Court is of like mind with the district court and affirms its denial of relief.

I.

A.

In the early hours of September 28, 1973, Robinson killed convenience store attendant William Moon with a single shot to the head. At trial, Robinson admitted the killing, but claimed that he shot in self-defense. Robinson, describing the course of events leading up to Moon's death, testified that he and Ernest Benjamin Smith entered the all-night grocery while their companion, George Holden, remained in the car. Robinson denied that he planned to rob the store, saying that he only wanted to buy some food; he stated, however, that he then believed Smith to be entertaining thoughts of robbery. Robinson testified that he walked to the back of the store and selected some items for purchase, then turned to approach the checkout counter. As he turned, he saw Smith and Moon facing each other with guns drawn. Smith saw him approach, shouted a warning to him and dropped behind a counter. Moon swung around and took aim at him; Robinson drew his gun and fired the fatal shot into Moon's head. He and Smith then ran to the car and, while Smith told Holden what had happened, they made good their escape.

Robinson turned himself in to the police in late October 1973. He was indicted for capital murder shortly thereafter and tried in June 1974. The jury returned a verdict finding Robinson guilty as charged and dictating that the penalty be assessed at death. ¹ In April 1977, the Texas Court of Criminal Appeals reversed Robinson's conviction, holding that the trial court had erred in allowing the State to bolster the credibility of State's witness Holden's testimony by showing that he had passed a polygraph examination. Robinson v. State, 550 S.W.2d 54 (Tex.Crim.App.1977).

Robinson was retried in the summer of 1977. The second trial resulted in a second sentence of death; that verdict was subsequently set aside with the trial court's granting of Robinson's motion for a new trial. The trial court's reasons for granting Robinson's motion for new trial were not articulated, see Vernon's Ann.C.C.P. art. 40.07 (1979) (prohibiting comment on the evidence in rulings on new trial motions). Our independent examination of Robinson's motion and the testimony adduced at the hearing on that motion discloses that the court's inquiry focused on Robinson's allegation that one or more jurors had considered, despite the court's instructions to the contrary, the prosecutor's suggestions that Robinson's testimony as to the circumstances of the slaying differed from that given by co-defendant Smith at Smith's separate trial, and from that given by Robinson to Dr. James Grigson, a psychiatrist, in the course of a pre-trial competency examination. ²

On April 3, 1978, the day his third trial began, Robinson entered a Special Plea ³ asking that his reprosecution, or at least resentencing to death, be found barred by article I, section 14 of the Texas Constitution ⁴ and the fifth, eighth, and fourteenth amendments of the federal Constitution. ⁵ The Plea was denied, the jury proceeded to judgment, and on May 13, 1978, Robinson was for the third time convicted and sentenced to death. The court denied Robinson's original motion for new trial based on charges of juror selection errors, erroneous evidentiary rulings, and insufficiency of the evidence. In May 1980, it granted Robinson's second motion: the court reporter had lost part of her notes and was unable to prepare a complete trial transcript for appellate review.

In early 1981, the district attorney informed Robinson that a fourth prosecution was imminent. Robinson responded with institution of this action in the federal district court.

B.

Robinson's pro se complaint framed this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Charging that the prosecutorial and judicial errors which provoked his retrials evidenced a malicious purpose to deprive him of a fair trial, Robinson asked that his reprosecution be enjoined and damages be assessed against the district attorney, the assistant district attorney, the state trial court judge, and the clerk of court who participated in his previous prosecutions. The district court construed his complaint as a petition in habeas corpus seeking relief from the threat of reprosecution under the proscriptions of the double jeopardy clause, ⁶ and ordered the state court criminal proceedings stayed pending consideration of that claim. ⁷ The court appointed counsel to represent him and referred the matter to a magistrate for further proceedings.

The State joined the double jeopardy argument on the merits. ⁸ On due consideration, the magistrate concluded that Robinson's reprosecution would not offend the double jeopardy clause and accordingly recommended that his petition be dismissed and the stay of the impending criminal prosecution be dissolved. The magistrate's recommendations elicited two responses on Robinson's behalf. Robinson himself, in a pro se response, challenged the magistrate's conclusion that the trial errors of which he complained neither individually nor collectively evidence the deliberate prosecutorial attempts to provoke a mistrial requisite to constitutional preclusion of reprosecution. His attorney, taking an approach not evidenced in Robinson's original federal court petition, challenged the course of the state proceedings as violative of Robinson's right to a speedy trial, and argued the threat of a fourth prosecution in and of itself to constitute cruel and unusual punishment.

The district court endorsed the magistrate's resolution of Robinson's double jeopardy claim, declined consideration of the claims newly raised under the sixth and eighth amendments, and denied relief. ⁹ Robinson appeals.

II.

Robinson urges this Court to find his fourth prosecution precluded by the double jeopardy clause, barred for lengthy delays violative of both his right to a speedy trial and general precepts of fundamental fairness, and prohibited as itself cruel and unusual punishment. The latter three claims are not properly before this Court and cannot at this time be considered.

Robinson's initial presentation of his speedy trial and eighth amendment claims was made directly to the district court, after the magistrate had completed consideration of the merits of the habeas corpus petition and submitted to the court his recommended findings and conclusions. The district court refused to entertain these claims and dismissed them without prejudice.

In habeas corpus proceedings, as in other civil proceedings, claims can be added after filing of the pleadings only by amendment; ¹⁰ under Fed.R.Civ.P. 15, amendment can be made after responsive pleadings have been filed "only by leave of the court or by written consent of the adverse party." ¹¹ Grant or denial of leave to amend is within the discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Dunn v. Koehring Co., 546 F.2d 1193 (5th Cir. 1977).

Though vigorously pressing these claims on their merits, Robinson has not argued that the district court erred in denying their consideration. Nor can we find its decision an abuse of discretion. The claims were filed at a very late stage of proceedings in the district court; moreover, there is no showing that the claims had been exhausted in the state courts, see Brown v. Estelle, 530 F.2d 1280 (5th Cir. 1976).

These claims stand in the same posture as Robinson's entirely new argument that the delays encountered in his prosecution are "fundamentally unfair." Never a part of the proceedings in the district court, they are no part of the proceedings on appeal. Cobb v. Wainwright, 666 F.2d 966 (5th Cir. 1982); Miller v. Turner, 658 F.2d 348 (5th Cir. 1981); Mayberry v. Davis, 608 F.2d 1070 (5th Cir. 1979). ¹²

III.

We begin, then, consideration of the single claim properly before us. Robinson charges that by its misconduct in the course of his prior trials, the State of Texas has triggered the preclusive effects of the double jeopardy clause. He seeks a ruling that his reprosecution is wholly barred; failing that, he asks that the State be restricted to a demand that he be punished by life imprisonment. The separate aspects of Robinson's double jeopardy claim will be taken up in turn.

A.

1.

The contours of the double jeopardy clause ¹³ are not easily delineated. A welter of cases, venerable and recent, have sought the application of its command; ¹⁴ their proliferation is itself testimony to the difficulties encountered in development of a cohesive jurisprudence of preclusion. ¹⁵ The dynamic process has, perhaps inevitably, spawned uncertainty over aspects once thought settled. The theory of preclusion pressed by Robinson has not gone unaffected by the instabilities inhering in this course of evolution. Developments have, in one sense, quelled disharmony: the bounds of...