Sawyers v. Collins, No. 91-6185

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore POLITZ, Chief Judge, KING, and EMILIO M. GARZA; EMILIO M. GARZA
Citation986 F.2d 1493
PartiesJohn Christopher SAWYERS, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Decision Date23 March 1993
Docket NumberNo. 91-6185

Page 1493

986 F.2d 1493
John Christopher SAWYERS, Petitioner-Appellant,
v.
James A. COLLINS, Director, Texas Department of Criminal
Justice, Institutional Division, Respondent-Appellee.
No. 91-6185.
United States Court of Appeals,
Fifth Circuit.
March 23, 1993.
Rehearing and Rehearing En Banc
Denied April 21, 1993.

Page 1494

Alexander Bunin, Houston, TX (Court-appointed), for Sawyers.

Stephani A. Stelmach, William C. Zapalac, Bob Walt, Asst. Attys. Gen., Dan Morales, Atty. Gen., Austin, TX, for respondent-appellee.

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

Before POLITZ, Chief Judge, KING, and EMILIO M. GARZA, Circuit Judges.

Page 1495

EMILIO M. GARZA, Circuit Judge:

Defendant, John Christopher Sawyers, was convicted by a jury of capital murder, and sentenced to death. His conviction and sentence were affirmed on direct appeal. Sawyers filed a petition for a writ of habeas corpus in federal district court, pursuant to 28 U.S.C. § 2254 (1988), claiming that (a) the special issues submitted to the sentencing jury did not enable them to give mitigating effect to evidence that he was intoxicated at the time of the offense; and (b) he was denied effective assistance of counsel when his trial attorney advised his relatives that he probably would not receive the death penalty, and therefore they need not testify in his behalf at sentencing. The district court denied Sawyers' petition, holding that both claims failed on the merits, and that Sawyers' mitigation claim was also procedurally barred.

Sawyers requests a certificate of probable cause to appeal the district court's denial of his petition, pursuant to 28 U.S.C. § 2253 (1988). Sawyers argues that the district court's denial of habeas relief was erroneous, because (a) his mitigation claim was not procedurally barred; (b) he was entitled to relief on the merits of his mitigation claim; and (c) he was entitled to an evidentiary hearing to determine whether his trial counsel advised his family not to testify on his behalf. Because Sawyers has not made a substantial showing of denial of his federal rights, we deny his request for a certificate of probable cause to appeal.

I

Sawyers murdered Ethel Delaney in Houston on February 2, 1983. After his arrest he signed a written statement which recounted the details of the crime:

On Wednesday February 2nd, 1983, I went to Ethel Delaney's house on Ojeman Road. I went there to talk to her to make up my mind whether or not I should steal her car from her and to decide whether or not I should murder her. I decided I was going to murder her.... I went to the kitchen and I grabbed a cast iron skillet from under the stove and went back into the bedroom and hit her on the head with it four times. The skillet broke on the fourth hit, the handle broke on it. Blood started coming out of her head so I assumed she was dying. I took the frying pan back to the kitchen and put it under the stove along with the broken handle.

I went back to the bedroom and found her purse, her car keys were in there with the rings and some money, it was over thirty dollars. I took the purse and left the house closing the door behind me. I took her car and I drove straight to the pawn shop and pawned the rings for $200.00. Then I went and picked up Desma Hejl and Carl Peterson and we went riding around and I had a wreck in the car later that night.

Trial Record, vol. XVIII, at 36 (State's Exhibit 34). 1 Sawyers' statement was introduced at trial, and the jury found him guilty of capital murder. At sentencing the jury answered yes to both special issues, and the trial court sentenced Sawyers to death. On direct appeal the Texas Court of Criminal Appeals affirmed Sawyers' conviction and sentence. See Sawyers v. State, 724 S.W.2d 24 (Tex.Crim.App.1986), overruled on other grounds by Watson v. State, 762 S.W.2d 591, 599 (Tex.Crim.App.1988).

In his second application for a writ of habeas corpus in the state courts, 2 Sawyers argued that the sentencing jury was prevented from considering and giving mitigating effect to evidence that he was intoxicated when he killed Ethel Delaney. The primary evidentiary support for that claim consisted of the testimony of two of Sawyers' acquaintances--Desma Hejl and

Page 1496

Chrystal Howard--who saw Sawyers at the Tacoma Car wash on the day of the murder. At trial Hejl testified that, when Sawyers arrived at the car wash, he was "pretty well waxed out," "pretty high," "too hyper to be normal," and "talking faster than normal." According to Hejl, Sawyers said that he had taken Mandrex, "a Mexican qualuden," earlier that day. Howard testified that, when Sawyers arrived at the car wash, "[i]t seemed like he might have been intoxicated or under the influence of something else." The evidence revealed that Sawyers had already murdered Ethel Delaney when he arrived at the car wash. Hejl testified that Sawyers arrived in a new car, and both Hejl and Howard testified that Sawyers showed Howard several rings which he claimed to have received from his ex-wife.

The trial court reviewed Sawyers' habeas application and entered written findings of fact, which stated that

[T]here was no evidence that [Sawyers] was intoxicated at the time he committed the instant capital murder. At most, the evidence showed that at some time after [Sawyers] killed the decedent, he visited friends who believed he was intoxicated or "high." There was no evidence adduced at trial that demonstrated that the instant capital murder was in any way drug-related.

State Habeas Record, Application No. 16,991-02, at 153-54. The trial court concluded that Sawyers' claim failed on its merits, because "the isolated incident of [Sawyers'] intoxication, sometime after the crime, with no identifiable connection to the capital murder, is not evidence which extenuated the gravity of the crime or reduced [Sawyers'] blameworthiness for the crime." See id. at 156. The trial court also concluded that Sawyers' claim was barred because he had failed to preserve it by objecting at trial.

Sawyers also argued in his second state habeas application that he was denied effective assistance of trial counsel, in violation of the Sixth Amendment. Sawyers claimed that his attorneys underestimated the likelihood that he would receive the death penalty, and consequently failed to call his family to testify in his behalf at trial. Sawyers presented the affidavits of several of his relatives, who stated that they would have appeared at Sawyers' trial if his lawyer had not advised them not to, and would have testified to certain mitigating facts, such as Sawyers' history of drug abuse and his service in the navy.

The trial court's written findings of fact stated that Sawyers' counsel never underestimated the probability that Sawyers would be sentenced to death; neither did counsel advise Sawyers' family that it was unlikely that he would receive the death penalty, or that it was unnecessary for them to appear at trial. The trial court further found that counsel made a tactical decision not to introduce evidence of Sawyers' substance abuse and naval service, because that evidence was not likely to be regarded by the jury as mitigating. The trial court concluded that Sawyers received effective assistance of counsel at trial.

The trial court recommended that the Court of Criminal Appeals deny relief. The Court of Criminal Appeals denied Sawyers' application with a written order, stating only that "the trial court's findings and conclusions are supported by the record."

Sawyers then filed his petition for a writ of habeas corpus in federal district court. Sawyers again argued that, at the punishment phase of his trial, the jury was prevented from considering and giving mitigating effect to evidence that he was intoxicated at the time of the offense. The district court rejected Sawyers' claim on the grounds that it was procedurally barred. In the alternative, the district court rejected Sawyers' claim on the merits, because (1) the jury could give effect to any evidence of intoxication via the statutory special issues submitted to the jury at sentencing, and (2) there was no evidence to show that Sawyers was intoxicated at the time of the offense. Sawyers also claimed that his trial counsel was ineffective for failing to call his family to testify at trial. The district court rejected this claim on its merits. The district court denied Sawyers' petition for a writ of habeas

Page 1497

corpus, and also denied a certificate of probable cause to appeal.

Sawyers is before this Court seeking a certificate of probable cause to appeal the district court's denial of his petition. Sawyers argues that the district court erred by (a) rejecting his mitigating evidence claim--on the basis of procedural default and on the merits; and (b) denying him an evidentiary hearing regarding his ineffective assistance claim. We granted a stay of execution, pending our decision on Sawyers' application for a certificate of probable cause to appeal.

II

"In a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of probable cause." Fed.R.App.P. 22(b); see also 28 U.S.C. § 2253 (1988). 3 A certificate of probable cause to appeal will not be granted unless the petitioner makes a substantial showing of the denial of a federal right. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (citing 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 such a showing, "the petitioner need not show that he should prevail on the merits.... Rather, he 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...

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76 practice notes
  • Nethery v. Collins, No. 92-1742
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 11, 1993
    ...supports a finding of intoxication. Nethery met the evidentiary threshold for Eighth Amendment purposes. See Sawyers v. Collins, 986 F.2d 1493 (5th Cir.1993) (merits of Penry-type claim not reached because defendant's evidence of intoxication insubstantial). The question of Nethery's intoxi......
  • COCKRUM BY WELCH v. Johnson, No. 6:93 cv 230.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • July 25, 1996
    ...the theory that the state habeas judge had an opportunity to observe the conduct of defense counsel at trial. E.g., Sawyers v. Collins, 986 F.2d 1493, 1504-05 (5th Cir.), cert. denied, 508 U.S. 933, 113 S.Ct. 2405, 124 L.Ed.2d 300 (1993); Clark v. Collins, 956 F.2d 68, 72 (5th Cir.), cert. ......
  • Rupert v. Johnson, Civil Action No. SA-98-CA-31-OG.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • July 8, 1999
    ...2639, 2643-48, 91 L.Ed.2d 397 (1986); Muniz v. Johnson, 132 F.3d at 220-21; Nobles v. Johnson, 127 F.3d at 420; and Sawyers v. Collins, 986 F.2d 1493, 1499 (5th Cir.1993), cert. denied, 508 U.S. 933, 113 S.Ct. 2405, 124 L.Ed.2d 300 46. See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, ......
  • Robertson v. Cockrell, No. 00-10512.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 14, 2003
    ...Nethery v. Collins, 993 F.2d 1154 (5th Cir.1993), cert. denied, 511 U.S. 1026, 114 S.Ct. 1416, 128 L.Ed.2d 87 (1994); Sawyers v. Collins, 986 F.2d 1493 (5th Cir.), cert. denied, 508 U.S. 933, 113 S.Ct. 2405, 124 L.Ed.2d 300 (1993); Bridge, 963 F.2d 767; Cordova v. Collins, 953 F.2d 167 (5th......
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76 cases
  • Nethery v. Collins, No. 92-1742
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 11, 1993
    ...supports a finding of intoxication. Nethery met the evidentiary threshold for Eighth Amendment purposes. See Sawyers v. Collins, 986 F.2d 1493 (5th Cir.1993) (merits of Penry-type claim not reached because defendant's evidence of intoxication insubstantial). The question of Nethery's intoxi......
  • COCKRUM BY WELCH v. Johnson, No. 6:93 cv 230.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • July 25, 1996
    ...the theory that the state habeas judge had an opportunity to observe the conduct of defense counsel at trial. E.g., Sawyers v. Collins, 986 F.2d 1493, 1504-05 (5th Cir.), cert. denied, 508 U.S. 933, 113 S.Ct. 2405, 124 L.Ed.2d 300 (1993); Clark v. Collins, 956 F.2d 68, 72 (5th Cir.), cert. ......
  • Rupert v. Johnson, Civil Action No. SA-98-CA-31-OG.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • July 8, 1999
    ...2639, 2643-48, 91 L.Ed.2d 397 (1986); Muniz v. Johnson, 132 F.3d at 220-21; Nobles v. Johnson, 127 F.3d at 420; and Sawyers v. Collins, 986 F.2d 1493, 1499 (5th Cir.1993), cert. denied, 508 U.S. 933, 113 S.Ct. 2405, 124 L.Ed.2d 300 46. See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, ......
  • Robertson v. Cockrell, No. 00-10512.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 14, 2003
    ...Nethery v. Collins, 993 F.2d 1154 (5th Cir.1993), cert. denied, 511 U.S. 1026, 114 S.Ct. 1416, 128 L.Ed.2d 87 (1994); Sawyers v. Collins, 986 F.2d 1493 (5th Cir.), cert. denied, 508 U.S. 933, 113 S.Ct. 2405, 124 L.Ed.2d 300 (1993); Bridge, 963 F.2d 767; Cordova v. Collins, 953 F.2d 167 (5th......
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