Williams v. Lynaugh

• Decision Date: 10 February 1988
• Docket Number: No. 88-2131,88-2131
• Citation: 837 F.2d 1294
• Parties: Calvin Joseph WILLIAMS, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, and The Honorable Jim Mattox, Attorney General of Texas, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1294

837 F.2d 1294

Calvin Joseph WILLIAMS, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, and The Honorable Jim Mattox, Attorney General of

Texas, Respondents-Appellees.

No. 88-2131.

United States Court of Appeals,

Fifth Circuit.

Feb. 10, 1988.

Washington, Lampley, Evans & Braquet, Craig A. Washington, Houston, Tex., Richard H. Burr, III, New York City, for petitioner-appellant.

Jim Mattox, Atty. Gen., Bob Walt, Asst. Atty. Gen., Austin, Tex., for respondents-appellees.

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

Before CLARK, Chief Judge, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Calvin Joseph Williams was convicted in state district court on August 26, 1980, of capital murder during the course of committing burglary of a habitation. In a separate sentencing hearing on the next day, he was sentenced to death. His conviction was affirmed on appeal.

Since that time, three execution dates have been set aside, four petitions for habeas corpus have been heard and denied in state courts and one in federal court, the denial affirmed by this Court. He has also just filed a fifth habeas corpus petition in state court which makes the claims numbered 8 and 9 below. These two claims also were added by amendment to his current petition while it was in the district court. Appellant is now before this Court on denial of his second federal habeas corpus petition by federal district court. He asks for a certificate of probable cause to appeal, and a stay of the execution date now set for early in the morning of February 11, 1988.

Although we did not receive this appeal until 7:30 p.m., February 10, 1988, we have given full review to the record. We had carefully considered appellant's claims and the record prior to the filing of the petition in this Court. This is our established procedure under Local Rule 8 and Fifth Circuit Internal Operating Procedures following that rule.

Petitioner makes nine claims which can be briefly paraphrased as follows:

1. A confession was unlawfully obtained.

2. Prospective jurors who were disqualified because of conscientious opposition to the death penalty were improperly excluded from the jury.

3. The basic Texas statute providing for capital punishment is unconstitutional.

4. The prosecution systematically excluded blacks from the jury by the use of peremptory challenges.

5. Because of the misuse of peremptory challenges by the prosecutor, the conviction and sentence was unconstitutional.

6. Black defendants who murder white victims are the object of discrimination under the Texas law as it is applied and administered.

7. The Texas law does not allow for charging the jury to consider mitigating evidence nor does it provide a procedure under which the jury may apply mitigating factors in answering special issues directed toward capital punishment.

8. Appellant was denied the opportunity to introduce evidence of his mental condition in mitigation because the same evidence could have been taken by the jury without proper instruction as aggravating.

9. In closing argument the prosecutor improperly elicited sympathy for the deceased victim of appellant's crime.

The first six of these nine claims are totally repetitive with claims made in prior habeas corpus proceedings in the state and federal courts. They have all been denied in the prior federal habeas corpus proceeding, and that denial was affirmed by this Court on July 29, 1987, Williams v. Lynaugh, 826 F.2d 11 (1987) (unpublished). These issues constituted successive writs. They have already been decided on the merits, "and the ends of justice would not be served by reaching the merits again." (Moore v. Blackburn, 806 F.2d 560 (5th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1988, 95 L.Ed.2d 827 (1987). There is no "colorable claim of factual innocence." Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986).

Issue number nine can be disposed of briefly. No objection was made to the prosecutor's argument at the trial. Appellant had the opportunity to raise this issue in his original appeal, in any one of the first four state habeas petitions and in his earlier federal habeas petition. The claim at this time clearly constitutes abuse of the writ under Rule 9(b) Rules Governing Section 2254 cases. The Supreme Court has made an apt description of claims such as this and has indicated specifically that they should be treated as an abuse of the writ. In Woodard v. Hutchins, 464 U.S. 377, 380, 104 S.Ct. 752, 753, 78 L.Ed.2d 541 (1984) a majority of the Court said:

A pattern seems to be developing in capital cases of multiple review in which claims that could have been brought years ago are brought forward in a piecemeal fashion only after the execution date is set or becomes eminent. Federal courts should not continue to tolerate--even in capital cases--this type of abuse of the writ of habeas corpus.

This statement is in a concurring opinion by Justice Powell to a brief per curiam decision of the Court, but the concurrence garnered the votes of a majority of the Court. This Court on a number of occasions has upheld the refusal to consider habeas corpus claims because of abuse of the writ even in capital cases. E.g. Johnson v. Lynaugh, 821 F.2d 224 (5th Cir.), stay denied, --- U.S. ----, 107 S.Ct. 3248, 97 L.Ed.2d 752 (1987).

Finally, we come to issues number seven and eight which are the only issues that have not been passed upon in the prior state and federal habeas corpus proceedings. Both the Texas Court of Criminal Appeals, Quinones v. State, 592 S.W.2d 933 (Tex.Crim.App.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980), and this Court, Granviel v. Estelle, 655 F.2d 673, 675 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982), have held the Texas capital punishment statute constitutional as against the claim that it lacks specific provision for charge to the jury and consideration by the jury of mitigating circumstances. Petitioner asserts, however, that since the Supreme Court granted certiorari in the case of Franklin v. Lynaugh, 823 F.2d 98 (5th Cir.), cert. granted, --- U.S. ----, 108 S.Ct. 221, 98 L.Ed.2d 180 (1987), doubt has been cast upon these holdings. It is urged that petitioner's execution be stayed until the Supreme Court renders an authoritative decision in Franklin v. Lynaugh.

At petitioner's punishment hearing, mitigating evidence on his behalf from his mother was allowed to go before the jury. Further, petitioner himself testified to the jury in mitigation. No objection to the instruction to the jury was raised although it did not specifically refer to the mitigating testimony.

The State argues that failure to raise at the trial the issue now presented constituted a waiver under Texas law. This is so only if it would be expected that petitioner would see the importance of the issue and raise it at that time. It is urged by the State that under its contemporaneous objection rule, the issue had already been raised and rejected by the Texas Court of Criminal Appeals six months before the Williams trial. Quinones v. State, 592 S.W.2d at 947.

We do not rest our analysis upon the claim that counsel should have been aware of the issue sufficiently to have raised it at the trial, even though the Supreme Court has held, in some circumstances at least, that failure to raise an issue in the face of well established legal authority can constitute a waiver of the claim. Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982). We cannot close our eyes to the fact that the granting of certiorari by the Supreme Court in Franklin has at least raised the possibility that what had become accepted as established legal authority may be modified, at least to some extent.

The starting point of our analysis must be in the fact that the law concerning the validity of the Texas statute as it relates to factors in mitigation is at this time clear and established. The statute is constitutional. The statute was upheld in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Further, in Lockett v. Ohio, 438 U.S. 586, 607, 98 S.Ct. 2954, 2966, 57 L.Ed.2d 973 (1978), the Supreme Court specifically stated that the Texas statute "survived the petitioner's Eighth and Fourteenth Amendment attack because three Justices concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question--despite its facial narrowness--so as to permit the sentencer to consider 'whatever mitigating circumstances' the defendant might be able to show."

In a number of later cases, we have followed the principle that mitigating evidence can be introduced and that it obviously is before the jury to be considered as part of the jury's decision as a balance to the aggravating circumstances which the jury must find to justify capital punishment. As we said...