Tigner v. Cockrell ( 2001 )

REVISED - September 18, 2001
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 01-50238
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GERALD WAYNE TIGNER,
Petitioner - Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Texas
August 28, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Gerald Wayne Tigner (“Tigner”), a death row inmate, seeks a certificate of appealability
(“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition.
Tigner has failed to make a substantial showing of the denial of his constitutional rights because
Supreme Court and Fifth Circuit precedents foreclose all of his arguments. We deny the COA.
The case arises from a violent and fatal altercation on a suburban street in Waco, Texas.
While on bail for a separate murder indictment, Tigner was driving a truck with his friend Guan Scott
(“Guan”) and his brother, Timothy Scott. As Tigner drove down the street, he came upon a car being
driven by Michael Watkins (“Watkins”) and James Williams (“Williams”). Tigner signaled for
Watkins and Williams to turn around the block, which they did. Tigner and Guan got out of the truck
and approached the car to talk to its occupants. For reasons unclear from the appellate record, the
conversation turned for the worse. Tigner started yelling at Williams and then began shooting his gun
into the car. As the car rolled away, Tigner walked alongside it and continued to fire his gun at
Watkins and Williams.
When Tigner ran out of bullets, he went back to his truck to retrieve another gun and returned
to the car. At this point, Watkins had fallen out of the car and was crawling away. As Watkins lay
on the ground, Tigner shot him in the head. Tigner then fled the scene. Both Watkins and Williams
died from the gunshot wounds. Watkins suffered ten gun shot wounds, including two to the head,
while Williams had seven gun shot wounds, including four head wounds.
The next day, law enforcement officials arrested Tigner, who later confessed to the shootings.
At trial, two eyewitnesses testified that Tigner was the gunman who shot Williams and Watkins. A
jury convicted Tigner of murder. At the punishment phase of the trial, the state presented numerous
witnesses, including a Special Crimes Unit officer who testified that Tigner had a “dangerous and
violent” reputation, and a municipal court judge who said that Tigner had threatened to “get even
with him later.” Another state witness was Dr. James Grigson, a psychiatrist who testified that Tigner
had an anti-social personality disorder and represented a continuing danger in the future. Tigner
introduced his own witnesses as well, offering statements from his mother and grandmother.
Ultimately, the jury sentenced Tigner to death, finding that he posed a future threat to society. Tigner
unsuccessfully sought post-conviction relief from the state courts. He then filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2254, which the federal district court denied.
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A prisoner seeking review of a district court’s denial of his habeas petition must first obtain
a COA. In his petition for a COA, Tigner makes two arguments. First, he claims that the state trial
court violated his Eighth and Fourteenth Amendment rights by refusing to tell the jury that he would
have been ineligible for parole for 35 years had he been given a life sentence. Second, he argues that
Dr. Grigson’s testimony that he would pose a future threat to society deprived him of due process.
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) governs this case because
Tigner filed his COA after AEDPA’s effective date of April 24, 1996. See Green v. Johnson, 116
F.3d 1115, 1119-1120 (5th Cir. 1997). In determining whether to grant a COA, we must see if the
prisoner has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 554,120 S. Ct. 1595, 1603, 146 L. Ed. 2d 542
(2000). To demonstrate a substantial showing of the denial of a constitutional right, a prisoner must
show that the “issues are debatable among jurists of reason.” Hill v. Johnson, 210 F.3d 481, 484 (5th
Cir. 2000).
I
A
Tigner argues that the state trial court violated his Fourteenth Amendment due process rights
by failing to instruct the jury that, if given a life sentence, he would not be eligible for parole for 35
years. At the time of his trial, Texas law barred judges from instructing juries on parole possibility
in capital cases, but allowed such instructions in non-capital felony cases. Tigner claims that the
information regarding his 35-year parole ineligibility was relevant to the jury’s calculus of his potential
future dangerousness: had the jurors known that he would remain incarcerated for at least 35 years,
they might have opted to give him a life sentence instead of the death penalty.
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Both the United States Supreme Court and the Fifth Circuit have already considered and
rejected such a Fourteenth Amendment due process challenge. As a general rule, states have the
freedom to formulate the type of jury instructions given in state trials. See California v. Ramos, 463
U.S. 992, 1000, 103 S. Ct. 3446,3452-3453, 77 L. Ed. 2d 1171 (1983) (“The deference we owe to
the decisions of the state legislatures under our federal system . . . is enhanced where the specification
of punishments is concerned, for ‘these are peculiarly questions of legislative policy.’”) (internal
citations omitted). The Supreme Court, however, has carved a narrow exception to the presumption
that states have wide discretion in the realm of jury instructions. See Simmons v. South Carolina, 512
U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d. 133 (1994). A state must give a jury instruction regarding
parole ineligibility if (1) the state introduces the defendant’s future dangerousness in asking for the
death penalty, and (2) the alternative sentence to death is life without the possibility of parole. See
id. at 168, 114 S. Ct. at 2196.
Contrary to Tigner’s assertions, Simmons provides no support for his due process argument.
In Simmons, the Supreme Court expressly held that its ruling does not apply to Texas, because it does
not have a life-without-parole alternative to capital punishment. See id. at 168 n.8, 114 S. Ct. at 2196
(noting that Texas and North Caro lina do not give juries information about parole status but
explaining that they do not have life-without-parole alternatives). The harshest alternative to capital
punishment in Texas is a life sentence without the possibility of parole for 40 years.1 In other words,
Tigner was not entitled to a jury instruction regarding his 35-year parole ineligibility, because only
prisoners who face life sentences without any possibility of parole can demand a Simmons instruction.
1
At the time of Tigner’s conviction, Texas law provided that the alternative was a life
sentence without the possibility of parole for 35 years.
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The Supreme Court recently reiterated this point: “The parole-ineligibility instruction is required only
when, assuming the jury fixes the sentence at life, the defendant is ineligible for parole under state
law.” Ramdass v. Angelone, 530 U.S. 156, 166, 120 S. Ct. 2113, 2120, 147 L. Ed. 2d 125 (2000)
(emphasis added).
Our Circuit has consistently emphasized that a defendant can receive a jury instruction
regarding parole ineligibility only if there exists a life-without-possibility-of-parole alternative to the
death penalty—an option not available under Texas law. See, e.g., Wheat v. Johnson, 238 F.3d 357
(5th Cir. 2001) (holding that a defendant was not entitled to a Simmons instruction because he faced
an alternative sentence with the possibility of parole 40 years later). To the extent that Tigner claims
that this court should nevertheless rule that he was entitled to a Simmons instruction, such an
argument is barred by the Teague non-retroactivity principle. See Teague v. Lane, 489 U.S. 288, 109
S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (holding that new rules of constitutional criminal law will not
be announced or applied on collateral review). We have repeatedly held that an extension of the
scope of Simmons will constitute a “new” rule under Teague. See, e.g., Wheat, 238 F.3d at 361-62.
B
Tigner also claims that the failure to give the jury instruction violated the Eighth
Amendment’s prohibition against cruel and unusual punishment. He correctly points out that the
Supreme Court in Simmons declined to state whether the Eighth Amendment might compel a
different result. See Simmons, 512 U.S. at 162, n.4, 114 S. Ct. at 2193. But the Fifth Circuit has
held that neither the due process clause nor the Eighth Amendment requires a state court to give jury
instructions regarding parole ineligibility in Texas. See, e.g., Johnson v. Scott, 68 F.3d 106, 112 (5th
Cir. 1995).
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C
Finally, Tigner maintains that Texas’ sentencing scheme at the time of his conviction violated
the Fourteenth Amendment’s guarantee of equal protection, because it treated capital crime
defendants differently from non-capital ones. Specifically, he contends that Texas law irrationally
allowed non-capital defendants to receive jury instructions regarding parole ineligibility, while capital
defendants could not demand such an instruction.2 We have previously considered and rejected this
equal protection argument. We apply a rational basis test in this case because it does not implicate
a suspect classification or a fundamental right. See Green v. Johnson, 160 F.3d 1029, 1044 (5th Cir.
1998) (holding that Texas law does not confer a fundamental right to parole). Thus, under a rational
basis test, we must uphold a governmental classification if it rationally promotes a legitimate
government objective. Id.
We have held that a state could rationally conclude that juries should not consider parole
ineligibility in capital cases only:
Instructions on parole eligibility at the punishment phase of capital murder trials might
tempt capital sentence juries to consider such transitory, but public, issues as prison
overcrowding, the identities of the membership of the Texas Board of Pardons and
Paroles, or the recent track record of that Board in releasing violent offenders, as
factors which should be weighed in reaching their verdict at punishment. . . . The
Texas legislature could rationally conclude that injection of parole issues at the
punishment phase of capital murder trial would invite consideration of factors
unrelated to the defendant’s blameworthiness. . . .
Id. at 1044 (internal citations omitted). Tigner acknowledges that our Circuit has rejected an equal
protection challenge to Texas’ sentencing scheme, but he requests that we reconsider our decision.
2
Texas has now amended the statute to allow a capital crime defendant to receive a jury
instruction regarding his parole possibility. See TEX. CODE CRIM. PROC. art. 37.071(e)(2)(b) (2001).
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One circuit panel cannot overrule another panel’s decision. See, e.g., Tucker v. Johnson, 242 F.3d
617, 621 n.6 (5th Cir. 2001).
II
Tigner constitutionally challenges the admission of Dr. James Grigson’s expert testimony that
he would be a future threat to society with little hope of rehabilitation. Dr. Grigson came to this
conclusion without personally interviewing Tigner. This argument is procedurally barred for the
failure to exhaust state remedies. See 28 U.S.C. § 2254(b). At his state trial, Tigner objected to Dr.
Grigson’s testimony on evidentiary grounds only, and not on constitutional grounds. We will not
consider this constitutional challenge because it was not presented to the Texas Criminal Court of
Criminal Appeals. See Richardson v. Procunier, 762 F.3d 429 (5th Cir. 1985) (requiring exhaustion
at the highest state court).3
Even if Tigner had exhausted his state remedies, his constitutional objection to the admission
of Dr. Grigson’s testimony would fail because of Teague’s non-retroactivity principle. Tigner
concedes that the Supreme Court has allowed the admission of expert psychiatric testimony even in
a death penalty case, see Barefoot v. Estelle, 463 U.S. 880, 904, 103 S. Ct. 3383, 3401, 77 L. Ed. 2d.
1090 (1983), but he responds that the Court implicitly overruled Barefoot when it later issued its
Daubert standard for the admission of scientific evidence. See Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). We decline Tigner’s invitation to undercut
3
The federal district court noted that Tigner had failed to exhaust his state remedies,
but nevertheless addressed and rejected the argument on its merits. Although the district court
considered this argument, we can sua sponte refuse to hear it for the lack of exhaustion. See Graham
v. Johnson, 94 F.3d 958, 970 (5th Cir. 1996).
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Barefoot, because to do so on collateral review would constitute a new rule in violation of Teague’s
non-retroactivity principle.4
Tigner’s application for a certificate of appealability is DENIED.
4
Judge Garza only reiterates his belief, as expressed in his special concurrence in Flores
v. Johnson, that a psychiatrist who predicts a murderer’s future dangerousness without examining
him likely runs afoul of all five Daubert factors. See Flores v. Johnson, 210 F.3d 456, 464-70 (5th
Cir. 2000) (specially concurring, Garza, J.) (recognizing the “statutory right to impose death as an
appropriate punishment” but also cautioning that “what separates the executioner from the murderer
is the legal process by which the state ascertains and condemns those guilty of heinous crimes.”).
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