Tucker v. Johnson

• Decision Date: 03 June 1997
• Docket Number: No. 97-20101,97-20101
• Citation: 115 F.3d 276
• Parties: Karla Faye TUCKER, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 276

115 F.3d 276

Karla Faye TUCKER, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 97-20101.

United States Court of Appeals Fifth Circuit.

June 3, 1997.

As Corrected on Grant of Rehearing July 2, 1997.

George McCall Secrest, Jr., Bennett, Secrest & Meyers, Houston, TX, David L. Botsford, Austin, TX, for petitioner-appellant.

Margaret Portman Griffey, Austin, TX, for respondent-appellee.

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

ON PETITION FOR REHEARING

Before SMITH, DUHE and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Since the panel opinion was issued in this case, see Tucker v. Johnson, 115 F.3d 276 (5th Cir.1997), the Supreme Court has held §§ 101-106 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1217-21 (1996) (codified at 28 U.S.C. §§ 2244, 2253-2254), inapplicable to habeas corpus petitions filed before the act's effective date of April 24, 1996. See Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). ¹ As petitioner's habeas petition predated the act, she is not subject to it.

The standard for granting a certificate of appealability ("COA") under the AEDPA, see 28 U.S.C. § 2253(c)(2), is the same as the standard for granting a certificate of probable cause, see 28 U.S.C.A. § 2253 (West 1994), under our pre-AEDPA jurisprudence. See Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). Nonetheless, we did consider the deferential standards of the AEDPA in making our determination whether to grant a COA. See Tucker, 115 F.3d 276, 280.

Although we ultimately conclude that Tucker is not entitled to an appeal under the pre-AEDPA standards of review, Lindh substantially changes our reasoning. Accordingly, treating Tucker's suggestion for rehearing en banc as a petition for panel rehearing, we grant rehearing, withdraw our prior opinion, and substitute the following:

Karla Tucker, proceeding in forma pauperis, appeals the denial of her petition for writ of habeas corpus. Concluding that she has failed to make a substantial showing of the denial of a constitutional right, we deny her a certificate of appealability ("COA").

I.

A.

On June 12, 1983, Tucker spent most of the day using drugs and alcohol with her boyfriend, Danny Garrett ("Danny"); her sister, Kari Burrell ("Kari"); Kari's ex-husband, Ronnie Burrell ("Ronnie"); and James Leibrant. Kari and Ronnie left in the evening. In the early morning hours of June 13, Tucker, Danny, and Leibrant decided to go to Jerry Dean's home and steal his motorcycle.

They entered Dean's apartment using a key that Tucker had stolen. In the bedroom, they found Dean and Deborah Thornton. When Dean begged for his life, Tucker began to "pick" him with an axe. She later told Kari that she received sexual gratification with every swing of the axe. At one point, Leibrant entered the bedroom to find Tucker attempting to pull the axe out of Dean by using her foot on him as leverage. After she pulled the axe from his body, she lifted it above her head, smiled at Leibrant, and swung it into Dean again.

Tucker and Danny then used the axe on Thornton until, when Thornton begged for the end, Danny embedded the axe in her throat. Danny and Tucker took Dean's truck, wallet, and motorcycle. They stored the stolen property with Danny's brother, Doug Garrett ("Doug").

Tucker boasted about her actions to Kari and Doug and expressed pleasure while watching a television news report about the killings. Kari and Doug went to the police and reported Tucker's statements. Doug was fitted with a hidden microphone and recorded a ninety-minute discussion with Tucker and Danny about the murders.

B.

A jury convicted Tucker of capital murder. See TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon 1994). At the sentencing phase, the jury was instructed to consider the two statutorily-mandated special issues, as required by then-existing law:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;

....

TEX.CODE CRIM. PROC. ANN. art. 37.071(b) (Vernon 1981). The jury answered each special issue in the affirmative, and the court sentenced Tucker to death.

The conviction and sentence were affirmed on direct appeal, see Tucker v. Texas, 771 S.W.2d 523 (Tex.Crim.App.1988) (en banc), whereupon Tucker sought state habeas relief, raising the issues she raises in her federal habeas petition. After a remand to the trial court for an evidentiary hearing, the Texas Court of Criminal Appeals denied habeas relief.

Tucker then filed a federal habeas petition, alleging ineffective assistance of counsel and constitutional errors in the jury instructions and challenging the state's use of Leibrant's testimony at trial. ² The district court granted summary judgment for the state, dismissed the petition, and denied a CPC.

II.

In order to appeal, a habeas petitioner must receive a CPC. See 28 U.S.C. § 2253 (West 1994). ³ We may not grant a CPC unless the applicant has made 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) (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971)). The petitioner must show "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." Sawyers v. Collins, 986 F.2d 1493, 1497 (5th Cir.1993) (quoting Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4) (internal quotation marks omitted).

III.

A.

Tucker's first two issues on appeal are intertwined. First, she argues that trial counsel rendered ineffective assistance of counsel by proposing the voluntary intoxication instruction contained in TEX. PENAL CODE ANN. § 8.04(b) (Vernon 1994). Specifically, counsel requested, and the court gave, the following instruction:

Evidence of temporary insanity of the defendant caused by intoxication may be introduced by the defendant in mitigation of the penalty attached to the offense for which she is being tried.

....

Temporary insanity caused by intoxication means that the defendant's mental capacity was so disturbed from the introduction of a substance into her body that the defendant did not know that her conduct was wrong or was incapable of conforming her conduct to the requirements of the law she allegedly violated.

Tucker, 771 S.W.2d at 533. She asserts that this instruction prevented the jury from considering the mitigating evidence of intoxication unless that intoxication rose to the level of temporary insanity. But see Drinkard v. Johnson, 97 F.3d 751, 756-64 (5th Cir.1996) (rejecting this argument), cert. denied, --- U.S. ----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997).

Tucker's second argument is that her counsel was ineffective during juror voir dire. Both the prosecution and the defense questioned each juror at length about whether he would be willing to weigh temporary insanity caused by voluntary intoxication as a mitigating factor. Tucker argues that counsel should not have presented this version of the law to the jurors and should have objected to the prosecution's comments.

B.

To establish ineffective assistance, Tucker must demonstrate both deficient performance by her counsel and prejudice resulting from that deficiency. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). We compare counsel's performance to an objective standard of reasonableness, mindful of the strong presumption of adequacy. We will not find inadequate representation merely because, with the benefit of hindsight, we disagree with counsel's strategic choices. See Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983) (on rehearing).

Applying the prejudice prong in the context of counsel's performance at sentencing, we ask whether the petitioner has demonstrated "a 'reasonable probability' that the jury would not have imposed the death sentence in the absence of errors by counsel." Carter v. Johnson, 110 F.3d 1098, 1110 (5th Cir.1997). ⁴ Failure to establish either prong defeats the claim. See Washington, 466 U.S. at 697, 104 S.Ct. at 2069.

C.

As the state habeas court found, trial counsel's strategy was to "highlight evidence of [Tucker]'s temporary insanity resulting from voluntary intoxication at the time of the offense, rather than evidence of her mere voluntary intoxication which did not result in temporary insanity." Considering the horrific details of the murders and Tucker's own statement that she received sexual gratification from plunging the axe into her victims, trial counsel reasonably could have believed that evidence of mere voluntary intoxication would not persuade the jury to spare Tucker's life.

Counsel's strategy of arguing that Tucker was temporarily insane at the time of the murders was reasonable, though unsuccessful, and easily satisfies the standard for effective assistance. No reasonable jurist would disagree, and Tucker has not made a substantial showing of the denial of a federal right.

IV.

A.

Tucker's third contention is that the § 8.04 voluntary intoxication instruction violated the Eighth and Fourteenth Amendments because it impermissibly prevented the jury from considering the mitigating effect of non-insane voluntary intoxication. Our analysis of this claim is complicated by the doctrine of procedural default.

A federal habeas court may not consider a state prisoner's claim if the state based its rejection...