Burns v. Cockrell ( 2001 )


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  •                    UNITED STATES COURT OF APPEALS
                            For the Fifth Circuit
    
    
    
                                No. 01-40072
    
    
    
    
                             WILLIAM K. BURNS,
    
                                                  Petitioner-Appellant,
    
    
                                   VERSUS
    
    
               JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
                 CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
    
    
    
                                                  Respondent-Appellee.
    
    
    
               Appeal from the United States District Court
                     For the Eastern District of Texas
                                 5:99-CV-15
    
                              October 15, 2001
    
    Before DAVIS, JONES and DeMOSS, Circuit Judges.
    
    W. EUGENE DAVIS, Circuit Judge.*
    
          William Burns, a Texas death row inmate, seeks a certificate
    
    of probable cause to appeal the district court’s dismissal of his
    
    habeas petition.   We deny the certificate.
    
    
    
    
      *
       Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
    opinion should not be published and is not precedent except under
    the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                         I.
    
                                         A.
    
          William Burns was indicted for the capital offense of murder
    
    while in the course of a robbery in 1981.2              William Burns was
    
    tried, convicted, and sentenced to death that same year, but this
    
    conviction was eventually reversed on appeal by the Texas Court of
    
    Criminal Appeals based on error in the jury charge.3             Burns was
    
    again tried, convicted, and sentenced to death in 1986, but that
    
    conviction was also reversed by the Texas Court of Criminal Appeals
    
    based on the trial court’s exclusion of mitigation evidence.4
    
    Burns was tried, convicted, and sentenced to death for a third time
    
    in 1989.   He appealed to the Texas Court of Criminal Appeals, which
    
    affirmed his conviction in 1992.          The United States Supreme Court
    
    denied certiorari in 1993.5
    
          Burns filed an application for writ of habeas corpus in 1998
    
    in state district court.        The state court held an evidentiary
    
    hearing    and   issued   findings   of   fact   and   conclusions   of   law
    
    recommending denial of relief, which the Court of Criminal Appeals
    
    
    
      2
        William Burns, his brother Victor Burns, and a friend, Danny
    Ray Harris were accused of robbing and murdering William Burns’
    “replacement” at the plant from which petitioner had been fired
    shortly before the offense.
      3
       Burns v. State, 
    703 S.W.2d 649
     (Tex. Crim. App. 1985).
      4
       Burns v. State, 
    761 S.W.2d 353
     (Tex. Crim. App. 1985).
      5
       Burns v. Texas, 
    510 U.S. 838
    , 114 S.Ct.118 (1993).
    
                                         2
    adopted in 1999.       Burns then filed a petition for federal habeas
    
    relief.   The district court denied relief in 2000, and petitioner
    
    filed the instant application for COA with this court.
    
                                         B.
    
          A COA may only issue if the petitioner makes a “substantial
    
    showing of the denial of a constitutional right.”6 This burden can
    
    be met if the issues presented “are debatable among jurists of
    
    reason; . . . a court could resolve the issues in a different
    
    manner;   or   .   .    .   the   questions   are    adequate   to     deserve
    
    encouragement to proceed further.”7
    
          A death sentence alone does not justify the automatic issuance
    
    of a COA, although it is a proper consideration.8           Any doubts as to
    
    whether the COA should issue are to be resolved in the petitioner’s
    
    favor.9
    
          Burns’   petition     was   filed   after     the   enactment    of   the
    
    Antiterrorism and Effective Death Penalty Act (ADEPA).               Thus, for
    
      6
       28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 
    529 U.S. 473
    , 484,
    
    120 S. Ct. 1595
    , 1603 (2000); United States v. Kimler, 
    150 F.3d 429
    ,
    431 (5th Cir. 1998).
    
      7
       Miller v. Johnson, 
    200 F.3d 274
    , 280 (5th Cir. 2000)(quoting
    Barefoot v. Estelle, 
    463 U.S. 880
    , 893 n. 4, 
    103 S. Ct. 2283
    , 3394
    n. 4 (1983); Hicks v. Johnson, 
    186 F.3d 634
    , 636 (5th Cir. 1999),
    cert. denied, 
    528 U.S. 1132
    , 
    120 S. Ct. 976
     (2000); see also Slack,
    529 U.S. at 484, 120 S.Ct. at 1603-4 (quoting Barefoot v. Estelle,
    463 U.S. at 893 n. 4; 103 S.Ct. at 3394 n.4).
      8
       Lamb v. Johnson, 
    179 F.3d 352
    , 356 (5th Cir. 1999), cert denied,
    
    528 U.S. 1013
    , 
    120 S. Ct. 522
     (1999).
      9
       Id.
    
                                          3
    questions of law or mixed questions of law and fact adjudicated on
    
    the merits in state court, we may grant federal habeas relief under
    
    28 U.S.C. § 2254(d)(1) only if the state court decision “was
    
    contrary to, or involved an unreasonable application of, clearly
    
    established [Supreme Court precedent].”10           We now turn to Burns’
    
    specific claims.
    
                                          II.
    
                 A.   Failure to introduce mitigating evidence
    
            Burns first argues that his trial counsel was ineffective in
    
    failing to introduce evidence that his brother, Victor Burns,
    
    entered a plea of guilty to the offense in question.             Petitioner
    
    contends that this information would have been relevant mitigating
    
    evidence to be used during the punishment phase.             Texas case law
    
    did not permit Burns to introduce this evidence in mitigation.             The
    
    Texas Court of Criminal Appeals has stated the following: “We do
    
    not see how the conviction and punishment of a co-defendant could
    
    mitigate appellant’s culpability in the crime.               Each defendant
    
    should be judged by his own conduct and participation and by his
    
    own circumstances.”        Evans v. State, 
    656 S.W.2d 65
    , 67 (Tex. Crim.
    
    App. 1983). See also Cordova v. Johnson, 
    157 F.3d 380
    , 383-84 (5th
    
    Cir. 1998).       Burns argues further that even if his co-defendant’s
    
    sentence     would   not   be   relevant    mitigating   evidence,   his   co-
    
    defendant’s conviction would.        The language of Evans, cited above,
    
    
      10
           See Miller, 200 F.3d at 281.
    
                                           4
    however, makes it clear that this argument fails as well.
    
         In Lockett v. Ohio, 
    438 U.S. 586
    , 
    98 S. Ct. 2954
     (1978), the
    
    Supreme Court held that the sentencer can generally consider as a
    
    mitigating factor “any aspect of the defendant’s character or
    
    record and any of the circumstances of the offense that the
    
    defendant proffers as a basis for a sentence less than death.”          Id.
    
    at 604, 98 S.Ct. at 2965.
    
         Burns   argues   that   his   brother’s   guilty   plea   judicially
    
    establishes that he was the “triggerman” and that, despite the
    
    Texas case-law cited above, his attorney should have proffered this
    
    evidence because it is a relevant “circumstance of the offense.”
    
    This argument is without merit.      Victor Burns plea stated that he
    
    “...intentionally     and    knowingly   cause[d]    the   death   of   an
    
    individual, Johnny Lynn Hamlett, by shooting him with a gun....”
    
    No evidence was offered in support of Victor Burns’ conviction, and
    
    it is unclear whether Victor caused the death as a principal or as
    
    an accomplice.    The state was entitled to obtain the conviction
    
    without showing that Victor was the triggerman. The plea does not
    
    therefore “judicially establish” that Victor Burns was the sole
    
    “triggerman.”    Additionally, counsel had very good reason for not
    
    attempting to make such an argument.       In William Burns’ statement
    
    to the police, he admitted that he shot the victim.         (“I took the
    
    pistol out and I shot through the crack.            There were only two
    
    bullets in the pistol and I shot them.”)
    
         Because an attorney cannot be ineffective for failing to raise
    
                                        5
    meritless objections,11 petitioner’s trial counsel did not perform
    
    deficiently in failing to raise either of the above arguments.    We
    
    cannot, therefore, say that trial counsel was ineffective for
    
    failing to introduce this evidence, and the district court was
    
    correct in reaching this conclusion.12
    
                        B.   Eighth Amendment Violations
    
            Petitioner contends that his Eighth Amendment rights were
    
    violated because he received a harsher sentence than his cohorts.
    
    Victor Burns received a life sentence as a result of a plea bargain
    
    he entered into with the State, and Danny Ray Harris was never
    
    tried for the offense. Petitioner therefore argues that his “death
    
    sentence is disproportionate to his culpability in the offense”
    
    because “petitioner neither possessed a weapon nor fired a shot at
    
    the victim.”     As discussed above, whether petitioner actually shot
    
      11
           Clark v. Collins, 
    19 F.3d 959
    , 966 (5th Cir. 1994).
      12
        Burns asserts a separate but related claim that the government
    violated Brady v. Maryland in failing to disclose its intent to
    dismiss the charges against co-defendant Danny Ray Harris. Brady,
    
    373 U.S. 83
    , 
    83 S. Ct. 1194
     (1963). Burns argues that he suffered
    prejudice from the state’s failure to disclose this information
    because he could have used it as mitigating evidence in the
    punishment phase of his trial. Even if the state did not intend to
    try Harris and if it had disclosed this intent, this evidence would
    not have been admissible under Texas law for the same reason that
    the disposition of the charges against Victor Burns were not
    admissible. Moreover, this evidence is irrelevant to a defendant’s
    character, prior record or the circumstances of the offense.
    Lockett v. Ohio, 438 U.S. at 601-02. See also Penry v. Lynaugh,
    
    492 U.S. 302
    , 327-28, 
    109 S. Ct. 2934
    , 2951-52 (1989). Because the
    evidence was inadmissible, under Texas law and constitutionally
    irrelevant to mitigation, the state had no duty to disclose it
    under Brady.
    
    
                                        6
    the victim is a disputed issue.
    
         In    finding   that    petitioner’s     death     sentence   was     not
    
    disproportionate in light of his moral culpability, the magistrate
    
    judge entered proposed findings and recommendations which summarize
    
    the resolution of this issue perfectly:
    
         “Disparate sentencing appears to some degree inherent in
         our system. The Supreme Court has repeatedly reminded us
         of this fact and has consistently held that, even in the
         special context of the death penalty, there is nothing
         unconstitutional about it.” United States v. Ives, 
    984 F.2d 649
    , 650 n.3 (5th Cir. 1993). Thus, the mere fact
         that other perpetrators were treated more leniently does
         not render Burns’ death sentence a violation of the
         Constitution and laws of the United States. Absent such
         a violation, the Court cannot grant habeas corpus relief.
    
    Magistrate Judge’s Proposed Findings and Recommended Disposition,
    
    at 5.
    
         Burns has proffered no fact or persuasive legal argument that
    
    would lead us to conclude that reasonable jurists could find the
    
    district   court’s   decision     on   this   issue    (which   adopted    the
    
    magistrate’s findings reproduced above) debatable or wrong.
    
                                C.   Juror problems
    
         1.    Ineffective assistance of counsel in failing to strike a
    
    potential juror.
    
         Burns argues that his trial counsel was ineffective in failing
    
    to exercise a peremptory challenge against juror Tennyson.                This
    
    argument is based on Tennyson’s statement during voir dire that his
    
    religious beliefs lead him to the conclusion that “if a person take
    
    a life then his life should be took [sic].”           Burns argues that his
    
                                           7
    lawyer should have stricken Tennyson from the jury because he held
    
    an intractable belief that death is the only punishment he would
    
    consider.    This argument fails.
    
         Burns failed to object to the magistrate judge’s findings
    
    (adopted    by   the   district   court)   rejecting   this   ineffective
    
    assistance of counsel claim. The district court therefore reviewed
    
    Burns’ claim only for plain error and held that the magistrate
    
    judge’s finding (that trial counsel’s failure to excuse Tennyson
    
    was not ineffective assistance of counsel) was not debatable among
    
    jurists of reason.      This conclusion is sound because the record
    
    shows that although Tennyson did state that he believed in a “life
    
    for a life,” he expressed that belief only upon questioning by the
    
    prosecutor regarding his prior written statement that he could
    
    never, under any circumstances, return a verdict which assessed the
    
    death penalty.     Tennyson also indicated that he would render a
    
    decision according to the law and the evidence and would answer
    
    “no” to the special assessment questions (if he thought that was
    
    the proper answer) even if that would result in a sentence contrary
    
    to his religious teachings.
    
         Additionally, Tennyson made several statements favorable to
    
    the defendant, including that he would require the State to produce
    
    at least two witnesses against the accused and that he interpreted
    
    “beyond a reasonable doubt” to mean “where you don’t have any doubt
    
    whatsoever.”      Tennyson’s trial counsel testified at the state
    
    habeas proceeding that, in addition to the above statements, he did
    
                                         8
    not strike    Tennyson    because     he     was   involved       in   a   missionary
    
    program.     One of Burns’ punishment witnesses in the sentencing
    
    phase was involved in similar work, and Burns’ trial counsel felt
    
    that Tennyson might be able to identify with that witness.
    
         When we look at all of Tennyson’s voir dire testimony--
    
    particularly in light of counsel’s testimony at the habeas hearing-
    
    -it is clear that Burns’ trial counsel was not ineffective in
    
    failing to strike Tennyson.          Reasonable jurists would not argue
    
    otherwise.
    
         2. Juror bias as a matter of law
    
         Burns next argues that the acceptance of juror Tennyson
    
    resulted in an unfair trial, since he describes Tennyson as holding
    
    an intractable belief that the death penalty is the only punishment
    
    he would consider.      This claim fails for two reasons.              First, trial
    
    counsel    made   no   objection    to   Tennyson      as    a    juror.      As   the
    
    magistrate judge correctly observed, “absent a contemporaneous
    
    objection,    federal    habeas     corpus    review    of       claims    about   the
    
    composition of jury panels is barred.”             See Huffman v. Wainwright,
    
    
    651 F.2d 347
    , 349 (5th Cir. 1981).           Second, the evidence indicates
    
    that Tennyson     was   not,   in    fact,    biased,       as   discussed    above.
    
    Rather, Tennyson was a person who believed that the death penalty
    
    is appropriate in murder cases, but would follow the law and
    
    evidence, and consider mitigating evidence in deciding whether to
    
    assess that punishment.
    
    
    
                                             9
         3.    Improper (for cause) dismissal of a member of the venire
    
         Relying on Witherspoon v. Illinois, 
    391 U.S. 510
    , 521-22, 
    88 S. Ct. 1770
    , 1776-77 (1968), Burns next argues that prospective
    
    juror McKay was improperly excluded from service because of her
    
    views opposing the death penalty.         Although Ms. McKay did state
    
    that she was “closer to being totally against the death penalty,”
    
    the record shows that she was stricken for general unsuitability
    
    rather than for anti-death penalty sentiments.
    
         The prosecutor asked McKay whether she would be able to answer
    
    the three special assessment questions truthfully and she responded
    
    that she had not read the questions.           After several confused
    
    responses, the trial court gave petitioner’s counsel an opportunity
    
    to rehabilitate McKay by asking, “Would you refuse to find a person
    
    guilty even    if   the   evidence   overwhelmingly   showed   him   to   be
    
    guilty?”    McKay responded, “I don’t know ahead of time.”            When
    
    asked about the three special punishment issues again, McKay
    
    responded again that she had not read them.       The trial court then
    
    gave McKay an opportunity to read the questions. After an extended
    
    period of time, the trial judge made the following comments:
    
              Sir, have the record reflect this venire man is over
         distraught just from having to answer the question or
         read the questions.    She is obviously not capable of
         making a decision. The court excuses her upon challenge
         from the State.
                                    ...
              Mr. Court Reporter, you will have in your notes the
         amount of -- inordinate time this venire man took just
         sitting [here] attempting to decide how she was going to
         answer the question. The record shall reflect when the
    
    
                                         10
           court asked her to read the three questions she became
           distraught and began to cry and shake her head.
           Obviously not a fit person for jury service, obviously
           not.
    
           A federal habeas court gives substantial deference to the
    
    trial    judge’s   decisions   on   juror   bias   and   suitability.13   The
    
    petitioner has presented no facts or persuasive legal authority
    
    calling into question the trial judge’s decision to exclude juror
    
    McKay.
    
                                        III.
    
           For the reasons stated above, we deny Burns’s motion for a
    
    certificate of appealability.
    
    
    
    
      13
        See, e.g., Wainwright v. Witt, 
    469 U.S. 412
    , 424-26, 
    105 S. Ct. 844
    , 852-53 (1985).
    
                                         11