Selvage v. Lynaugh

• Decision Date: 28 March 1988
• Docket Number: No. 88-2278,88-2278
• Citation: 842 F.2d 89
• Parties: John Henry SELVAGE, Petitioner-Appellee-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 89

842 F.2d 89

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

No. 88-2278.

United States Court of Appeals Fifth Circuit.

March 28, 1988.

Jim Mattox, Atty. Gen., Robert S. Walt, Asst. Atty. Gen., Austin, Tex., for Lynaugh.

David Cunningham, Houston, Tex., for Selvage.

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

Before POLITZ, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In this, John Henry Selvage's second habeas trip to the federal courts, the United States District Court has granted a stay of his execution scheduled to be carried out before sunrise on March 30, 1988. The State of Texas asks this court to vacate that stay of execution. Selvage, in turn, requests a stay pending appeal of his dismissed claims, should we vacate the stay granted by the district court. Despite the shortness of time we will describe the history of this case and then turn to each of Selvage's claims. We conclude that we must vacate the stay and deny Selvage's request for stay because we are persuaded that Selvage's only substantial claim has not been preserved for review.

I

Selvage was convicted of the capital murder of Albert Garza, a peace officer, while attempting to rob Stephen Ventura, a jeweler. The jury found Selvage guilty on February 8, 1980, and on February 11, answered affirmatively the requisite interrogatories submitted pursuant to Article 37.071, Tex.Code Crim.Proc. (Vernon Supp.1988), the Texas capital sentencing provision. The conviction and death sentence were affirmed by the Texas Court of Criminal Appeals on July 11, 1978. Selvage v. State, 680 S.W.2d 17 (Tex.Crim.App.1984). Selvage did not petition for a writ of certiorari.

With his execution scheduled for November 14, 1985, Selvage sought a stay of execution from the United States District Court for the Southern District of Texas. That stay was granted on November 8, 1985. After considering Selvage's amended petition, the district court denied relief and, after what we later described as a "rankle over notice of appeal," we affirmed the denial of habeas relief. Selvage v. Lynaugh, 823 F.2d 845 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 309, 98 L.Ed.2d 268 (1987). When the trial court rescheduled his execution for January 27, 1988, Selvage filed his second application for state habeas relief. In this state habeas petition, Selvage asserted four bases for relief:

(1) the state trial judge denied Selvage due process by refusing inquiry during the voir dire of the panel concerning veniremens' understanding of a life sentence under Texas law;

(2) the admission into evidence of "unreliable, unadjudicated crimes evidence during the penalty phase" was contrary to the eighth and fourteenth amendments;

(3) failure of the capital sentencing procedure in Texas to allow consideration by the jury of a defendant's evidence of mitigation contrary to the eighth and fourteenth amendments; and

(4) failure of Texas capital sentencing procedure to provide a means for the jury's independent consideration of mitigating evidence.

The execution then was rescheduled for March 30, 1988, and without an evidentiary hearing, the state trial court on March 14, 1988, denied a stay with detailed findings of fact and conclusions of law. The Texas Court of Criminal Appeals adopted the trial court's findings and denied the writ. See Ex Parte Selvage, No. 16, 884-02, Tex.Crim.App. (March 21, 1988).

In his application for a stay of execution and writ of habeas corpus filed in the United States District Court, Selvage made the same arguments, adding that trial counsel had failed to investigate and present evidence of Selvage's mental illness, depriving Selvage of effective representation required by the sixth and fourteenth amendments. While the last contention is arguably new, the state concedes that Selvage has exhausted his state remedies. However, the state moved to dismiss for abuse of the writ, arguing that all of Selvage's present arguments could have been made in his first habeas petition.

The district court granted both Selvage's motion to proceed in forma pauperis and his application for a stay of execution. The stay rested solely on Selvage's first claim that he was denied the right to conduct voir dire regarding veniremens' understanding of Texas parole law. The district court rejected all other grounds, denied a certificate of probable cause as to them, but did not address the state's contention that Selvage had abused the writ. Selvage has filed a cross-appeal and requests that we issue a certificate of probable cause and a stay pending that appeal.

II

Our standard for review of a stay is essentially the same as the measure for granting a stay. We must consider:

(1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest.

O'Bryan v. McKaskle, 729 F.2d 991, 993 (5th Cir.1984); O'Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir.1982), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir.1982).

In a capital case "while the movant need not always show a probability of success on the merits, he must present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities [i.e. the other three factors] weighs heavily in the favor of granting the stay." O'Bryan v. McKaskle, 729 F.2d at 993 (quoting Ruiz v. Estelle, 666 F.2d at 856.).

Celestine v. Butler, 823 F.2d 74, 77 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 6, 97 L.Ed.2d 796 (1987); see also Streetman v. Lynaugh, 835 F.2d 1521, 1524 (5th Cir.1988).

III

The district court rested its stay of execution upon King v. Lynaugh, 828 F.2d 257, reh'g en banc granted, 828 F.2d 269 (5th Cir.1987), concluding that the panel in King had found a constitutional right to inquire into veniremens' understanding of parole. To the extent the district court footed its grant of a stay upon its view that the panel opinion was binding, it was in error. The grant of a rehearing en banc vacates the panel opinion, which thereafter has no force. The controlling law must be stated without giving effect to that panel opinion. As we will explain, we are not persuaded that Selvage has shown the requisite likelihood of success on this issue.

Before turning to the merits of the claim, we pause to explain that we find no writ abuse in the failure of Selvage to include this claim in his earlier federal habeas petition. The question is whether Selvage withheld the claim "without legal excuse." Daniels v. Blackburn, 763 F.2d 705, 707 (5th Cir.1985).

Legal excuse exists if "new claims[s] [are] based on facts or legal theories about which [the petitioner] had no knowledge when prosecuting his prior habeas petition." ... "A petitioner can prove that he has not abused the writ by showing, for example, [that] new facts have arisen since his prior petition, or that the law has changed in some substantive manner in the interim."

Id. (citations omitted).

The legal basis for the argument that Selvage was denied a constitutional right to inquire into the veniremens' understanding of parole enjoyed virtually no support in this circuit before the panel opinion in King v. Lynaugh, issued approximately six years after his trial and after our decision affirming the denial of his first federal petition for habeas relief. King, although short lived, presented a significant change in our circuit's law. We are persuaded then that this claim should not be dismissed for abuse of the writ; or in any event, that Selvage has a likelihood of avoiding the state's charge of writ abuse. It follows that whether this claim will support a stay requires that we ask whether the accused restriction on voir dire presents a serious question under our law.

We are not persuaded that a substantial legal question is presented. In Milton v. Procunier, 744 F.2d 1091 (5th Cir.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985), we considered the type of information about post-sentence relief a defendant is entitled to have explained to the jury. The state trial judge in Milton gave a pattern instruction not to consider possible action by the Board of Pardons and Paroles or the governor or to consider how long the defendant would be required to serve. We observed that the instruction "to some degree narrows the inquiry into future dangerousness. It is the obverse of Ramos." 744 F.2d at 1100 n. 10. ¹ Under Texas law a jury may not consider the possibility of parole in its deliberation. We have rejected the assertion that this Texas rule is unconstitutional. O'Bryan v. Estelle, 714 F.2d 365, 388-89 (5th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015-16, 79 L.Ed.2d 245 (1984).

If the Texas practice of instructing juries not to consider the effect of parole is sound the refusal to explore veniremens' "understanding" of the subject is an a fortiori case. The point is that the inquiry into parole matters in the selection of a jury cannot be required so long as the state may instruct the selected jury that it cannot consider the subject at all. A contrary assertion borders on the frivolous.

The decision of the Supreme Court in Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) is not to the contrary. In Turner, the Court held that a capital defendant accused of an interracial crime may on voir dire have the veniremen told the race of the victim and questioned about racial bias. The court observed that in such cases "[b]ecause of the range of discretion entrusted to a jury in a...