Washington v. Johnson

• Decision Date: 25 July 1996
• Docket Number: No. 95-20720,95-20720
• Parties: Terry WASHINGTON, 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 945

90 F.3d 945

Terry WASHINGTON, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 95-20720.

United States Court of Appeals, Fifth Circuit.

July 25, 1996.

Dina R. Hellerstein, Allan R. Blumstein, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Barry A. Chasnoff, Daniel McNeel Lane, Akin, Gump, Strauss, Hauer & Feld, San Antonio, TX, for petitioner-appellant.

Dana Emmert Parker, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for respondent-appellee.

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

Before GARWOOD, EDITH H. JONES and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Terry Washington was convicted of capital murder and sentenced to death for the murder of Beatrice Huling. With all direct appeals and collateral state reviews exhausted, Washington now seeks federal habeas relief. Following an evidentiary hearing, the district court denied Washington's application for writ of habeas corpus and refused to grant a certificate of probable cause for appeal. Washington seeks from this court a certificate of probable cause, based inter alia on the contentions that he was incompetent to stand trial and that his counsel was ineffective. Because Washington has made a substantial showing of the denial of a federal right with respect to the ineffectiveness claim, this court grants CPC but, after briefing and oral argument, has concluded that all of his claims lack merit.

I. BACKGROUND

Beatrice Huling and Terry Washington worked at Julie's Place, a restaurant in College Station, Texas. Huling was the restaurant's night manager, and Washington worked as a dishwasher. ¹ As part of her duties, Huling would count the night's receipts at the close of business, place cash in the register for the next day, deposit the surplus cash in the office safe, wait for the dishwasher to finish cleaning, set the security alarm, and lock the restaurant.

During the evening of January 14, 1987, Huling, Tuan Nguyen, Kim Tarr, and Washington were working together at Julie's Place. When Nguyen and Tarr left the restaurant at 1:00 a.m., Huling had completed her duties and was waiting for Washington to finish. Tarr recalled that Huling locked the back door behind them as they left the restaurant.

At 2:30 a.m. that same morning, Michael Jennings was in the parking lot next to Julie's Place. He heard an object hit the ground and went to investigate. Jennings found a purse and immediately called the police. The police arrived shortly thereafter and found Beatrice Huling's name and address in the purse and her car in the parking lot. The restaurant was closed and locked. The police ultimately entered the restaurant and discovered Huling's dead body ten to fifteen feet from the back door, lying in a pool of blood, with her head next to the base of the office safe. She had multiple stab wounds.

The investigation of the crime scene and the autopsy showed that Huling's hands had been tied with apron strings and that she had suffered eighty-five stab wounds, seven of which were fatal. The medical examiner testified at trial that the murder weapon had a five-and-a-half inch blade and that he believed it took Huling ten to fifteen minutes to die. The investigation further found no signs of forced entry into the restaurant, and that $628.00 had been stolen.

The evidence at trial overwhelmingly implicated Washington as the murderer. The State produced evidence linking Washington's boots to an impression made in a pool of Huling's blood. Willie Hemphill, Washington's neighbor, testified that on January 15 he went with Washington to buy some beer and noticed Washington had a lot of money. Additionally, Hemphill saw Washington with a hunting knife which had a blade consistent with the type of wounds inflicted upon Huling. Maud Swanson also saw Washington on January 15 and testified that he had a lot of money in his billfold when he took it out, and that when she asked him about the murder at the restaurant, Washington said "to hell with Bea, or something like that." Scott Milton, the manager of the restaurant, testified that when Washington picked up his paycheck on the day of the murder he told Milton, "The police are hassling me about this, but I'm too smart for them." Billy and Mary Sandles testified that they heard Washington say, "I killed the bitch." A teller at a local bank testified that sometime within a week of the murder, Washington changed $450.00 of small bills and coins for larger bills. An employee of J & J Bail Bond testified that shortly after the murder, Washington paid $468.00 in cash for a bond relating to traffic citations, paying with three hundred dollar bills and the rest in twenties and change.

The jury found Washington guilty of the capital offense of intentional murder during the course of a robbery. Following a separate punishment hearing, the jury affirmatively answered two special issues submitted pursuant to the Texas Criminal Code. In accordance with Texas law, the trial court imposed a death sentence.

Washington's conviction was affirmed by the Texas Court of Criminal Appeals. Washington v. State, No. 69,937 (Tex.Crim.App. Dec. 23, 1992), cert. denied, Washington v. Texas, 508 U.S. 927, 113 S.Ct. 2388, 124 L.Ed.2d 290 (1993). The trial court then issued a warrant scheduling Washington's execution for June 17, 1993. On May 28 Following the decision of the Texas Court of Criminal Appeals, Washington filed a motion for stay of execution and an application for habeas relief in federal district court. The district court entered a stay and referred the case to a magistrate judge. The magistrate judge issued a memorandum opinion recommending that the relief sought be denied. The district court, however, found that material facts had not been adequately developed at the state habeas proceedings as to three of Washington's thirteen claims. The court ordered an evidentiary hearing as to these claims which concerned Washington's competency to stand trial, the trial court's failure to order a competency hearing, and ineffective assistance of counsel. As for Washington's remaining claims, the district court concluded they were without merit and would be dismissed at the time of final judgment. Based on the evidentiary hearing, the district court entered findings of fact and conclusions of law, denied relief on the three claims not adjudicated in its previous order, entered final judgment denying Washington's habeas petition, and denied a certificate of probable cause and vacated the stay of execution. Washington v. Scott, No. H-93-1792 (S.D.Tex. July 25, 1995); Washington v. Scott, No. H-93-1792 (S.D.Tex. Aug. 10, 1995).

1993, Washington sought a stay of execution in order to allow time to prepare a state application for writ of habeas corpus. The motion to stay the execution was denied on June 8, 1993. On June 14, 1993, Washington filed his state application for writ of habeas corpus. The State filed its answer the following day. On June 15, 1993, an evidentiary hearing was held before the same judge which presided at Washington's trial to consider the merits of Washington's habeas claims. The trial court entered findings of fact and conclusions of law early the next morning recommending that the relief sought be denied. Ex Parte Washington, No. 17,726-361 (361st Dist.Ct., Brazos County, Tex., June 16, 1993). Based on these findings and conclusions, the Texas Court of Criminal Appeals denied Washington's application for a writ of habeas corpus. Ex Parte Washington, No. 24,922-01 (Tex.Crim.App. June 16, 1993).

II. DISCUSSION

This court lacks jurisdiction to hear Petitioner's appeal unless a certificate of probable cause is first granted. Black v. Collins, 962 F.2d 394, 398 (5th Cir.1992), cert. denied, 504 U.S. 992, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992). To obtain a certificate of probable cause, Petitioner must "make 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) (internal quotations and citations omitted). This requires that Petitioner "demonstrate 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." Id. at 893 n. 4, 103 S.Ct. at 3394-95 n. 4 (emphasis in original) (internal quotations and citations omitted). The nature of the penalty in a capital case is a "proper consideration in determining whether to issue a certificate of probable cause, but the severity of the penalty does not in itself suffice to warrant the automatic issuing of a certificate." Id. at 893, 103 S.Ct. at 3394-95.

Washington's application for certificate of probable cause and writ of habeas corpus raises five issues. First, Washington contends the district court applied an incorrect legal standard in evaluating his mental competency claim. Second, Washington argues the district court erred in finding him competent to stand trial. Third, Washington claims he received ineffective assistance of trial counsel. Fourth, Washington contends the prosecutor improperly exercised a peremptory challenge to strike a black woman from the jury. Last, Washington argues his conviction and death sentence were obtained as a result of purposeful racial discrimination. Each of Washington's claims requires discussion.

A. Mental Competency

It is well settled that due process prohibits prosecution of a defendant who is not competent to stand trial. Cooper v. Oklahoma, --- U.S. ----, ----, 116 S.Ct Petitioner asserts that the district court confused the threshold burden required of habeas petitioners with the requirement that incompetency be proven by a preponderance of evidence and thereby incorrectly applied a heightened...