Russell v. Lynaugh

• Decision Date: 08 December 1989
• Docket Number: No. 88-6010,88-6010
• Citation: 892 F.2d 1205
• Parties: -690 James RUSSELL, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1205

892 F.2d 1205

65 A.F.T.R.2d 90-690

James RUSSELL, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections Respondent-Appellee.

No. 88-6010.

United States Court of Appeals Fifth Circuit.

Dec. 8, 1989.

David Cunningham, Houston, Tex., for petitioner-appellant.

Charles A. Palmer, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before CLARK, Chief Judge, JOHNSON and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this death penalty case we will not dwell on the sordid facts proved in the petitioner's conviction for capital murder. Suffice it to say that James Russell murdered Thomas Stearns, a crucial witness against him in an unrelated robbery for which he was about to be tried, and that the murder was especially mean and vile, involving kidnapping and rape. As is usually true in most of these death penalty cases, Russell's innocence is not even remotely suggested. As is also true in most of these cases, the wheels of justice have moved very, very slowly over more than a decade.

I

Russell was indicted in cause number 9969 on May 13, 1974, for the felony offense of capital murder. This original indictment was dismissed, and Russell was reindicted in cause number 10,560 on February 17, 1977. Russell was tried by a jury in the 130th Judicial District Court, Fort Bend County, Texas, beginning on November 15, 1977. The jury returned a verdict of guilty on the offense charged and sentenced Russell to death. The Texas Court of Criminal Appeals affirmed on March 12, 1980. Russell v. State, 598 S.W.2d 238 (Tex.Crim.App. reh'g den. April 23, 1980). On November 17, 1980, the United States Supreme Court denied Russell's petition for writ of certiorari. Russell v. Texas, 449 U.S. 1003, 101 S.Ct. 544, 66 L.Ed.2d 300 (1980). Russell then was scheduled to be executed on December 7, 1981. On November 20, 1981, Russell filed an application for state writ of habeas corpus in the state court in which he was convicted; on December 2, 1981, the Texas Court of Criminal Appeals, denied relief. Ex parte Russell, No. 10,096.

On December 1, 1981, Russell filed an application for writ of habeas corpus and motion for stay of execution in federal court, Russell v. Estelle, No. H-81-3149. On December 2, 1981, that court entered an order staying Russell's execution and scheduled an evidentiary hearing for February 1, 1982. On May 10, 1982, the state filed its motion to dismiss. On June 22, 1982, the court entered an order allowing Russell to file an amended petition on or before July 8, 1982. Russell then moved for an extension of time, and on July 9, 1982, the court entered an order extending the time for filing the amended petition to July 20, 1982; it also rescheduled the evidentiary hearing for August 20, 1982; Russell filed his amended petition on July 20. He then moved for a continuance of the evidentiary hearing, moved to expand the record, and moved for the appointment of experts and investigators. On August 6, 1982, the court entered an order rescheduling the evidentiary hearing for October 5, 1982, but the hearing subsequently was cancelled. On January 28, 1983, Russell filed a supplemental petition. On April 17, 1984, the state filed a supplemental motion to dismiss, and motion for summary judgment; on May 25, 1984, the state filed a second supplemental motion to dismiss; and on February 8, 1985, the state filed a third supplemental motion to dismiss and motion for summary judgment. On April 10, 1986, the court entered a memorandum and final judgment, denying all relief and dismissing Russell's application. Russell then filed a motion to amend the judgment, and on October 26, 1987, a federal magistrate entered a memorandum and recommendation in which he recommended that the motion be denied. On September 21, 1988, the district court adopted the magistrate's recommendation, denied the motion to amend judgment, and rescinded its stay of execution. This appeal followed.

II

A

The first issue we address is whether the trial court erred in sustaining the state's challenge for cause to venire member Hoover. Russell argues that the state erred under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), because Hoover's answers on voir dire indicated only that Hoover's opposition to the death penalty would have affected his deliberation and consideration of issues of fact, not that it would have "substantially impaired" it. Under Witt, a potential juror's opposition to the death penalty must "substantially impair" that person's ability to serve as juror to become disqualified as a juror.

The state makes a two-fold rebuttal to Russell's argument. First, the state contends that Russell waived his right to appeal Hoover's dismissal because he did not object at trial. Under Texas law a failure to object at trial to the exclusion of a juror constitutes a waiver of the right. Johnson v. State, 629 S.W.2d 731, 735-36 (Tex.Crim.App.1981); Crawford v. State, 617 S.W.2d 925, 932 (Tex.Crim.App.1980), reh'g den. (1981). An adequate and independent finding of procedural default bars consideration of a federal claim on either direct or habeas review if the last state court rendering a judgment in the case "clearly and expressly" states that its judgment rests on a state procedural bar. Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989). The state argues that this condition was met here because on direct appeal the Texas Court of Criminal Appeals applied the contemporaneous objection rule and plainly stated that it was doing so. Russell v. State, 598 S.W.2d at 246-47. In the absence of a showing of cause for the procedural default and actual prejudice from the error, federal courts must defer to state default rules. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Since the Texas Court of Criminal Appeals plainly stated that it was applying its procedural default rule and no cause and prejudice was raised here, the state's argument concludes, the Texas court's finding of procedural default is an adequate and independent state ground that bars us from reviewing the merits of Russell's contention.

Second, the state argues that venireman Hoover was properly excluded based on the merits of the challenge. The state concedes that under Witt the standard to be applied is "substantially impair," but it argues that the trial judge should be upheld because he was in the best position to judge the depth of the venireman's feelings about capital punishment and to decide whether the state properly challenged that juror for cause. Without evidence that the judge actually applied the wrong standard, the reviewing court must presume that the trial court applied the correct standard. The sole fact that the prosecutor used the word "affect" rather than the talismanic words "substantially impair" does not mean that Hoover's response could not have betrayed to the trial judge an opposition to the death penalty strong and clear enough to require his disqualification.

Because we agree that the Texas appellate court's finding of procedural default bars us from reaching the merits, we need not determine whether the state's challenge to venireman Hoover was properly sustained. We come to this conclusion because we are fully convinced that the Texas Court of Criminal Appeals unambiguously applied a procedural bar to the petitioner's claim. We now turn to trace the procedural background that underlies this conclusion.

B

At trial several potential jurors, like Hoover, expressed opposition to the death penalty. The specific colloquy with respect to Hoover was:

[Q. Prosecutor] You are told that this Defendant is charged with the murder of a man by the name of Stearns. It is further alleged that he is charged with he committed the murder while kidnapping. Now, one charged with the offense, if convicted, is guilty of capital murder, for which the mandatory penalty is life or death. It only carries two penalties. Now, with the understanding let me ask you this: Do you have any religious or conscientious scruples against the infliction of death as a punishment for crime?

[A. Hoover] I don't have any religious, but I do have conscientious.

[Q.] All right, sir. Is this a long-held feeling? Have you felt this way for some time?

[A.] Yes. I have.

[Q.] Now, I think I told you briefly Tuesday--I am sorry. I am getting kind of rumdum.... that today that you don't have to decide specifically which penalty will apply. However, if you were sitting as a juror you would be asked certain fact questions and dependent upon how you answered those questions that would absolutely direct the Judge of which sentence he impresses. He doesn't have any discretion. If you answer them yes, he has to give him death. If you answer them no, he has to give him life. So let me go just a little bit further with you.

Knowing that that this is the two penalties, life and death--with that understanding, would that knowledge affect your deliberations on any issue of fact--your thinking in consideration of those fact questions?

[A.] Yes. Because the death penalty would enter into it.

[Prosecutor:] All right, sir. We would challenge for cause, your Honor.

THE COURT: All right, Thank you, Mr. Hoover. You may go and Mrs. Cole will mail your check.

105 S.Ct. at 848.

As is apparent, defense counsel made no objection to the dismissal of Hoover. Indeed, defense counsel made no objection to the dismissal of any of the "Witherspoon " jurors. Although defense counsel made an effort to rehabilitate some Witherspoon jurors, he made no effort to rehabilitate Hoover.

After the jury convicted the petitioner and sentenced him to death, he appealed to the Texas Court of Criminal Appeals. Russell v. State, 598 S.W.2d 238, and assigned as error, inter alia, the dismissal of three...