Baker v. Cockrell ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 01-20308
__________________
STANLEY ALLISON BAKER, Jr.
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
______________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(4:99-CV-806)
______________________________________________
October 19, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:*
Petitioner Stanley Allison Baker (Baker), convicted of capital
murder in Texas and sentenced to death, requests from this Court a
Certificate of Appealability (COA) pursuant to 28 U.S.C. §
2253(c)(2). In an attempt to make a substantial showing of the denial
*
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opinion should not be published and is not precedent except under the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.
of a constitutional right, Baker raises the following issues in his COA:
(1) the Texas Court of Criminal Appeals’ refusal to determine the
sufficiency of the evidence to support the jury’s negative answer to the
mitigation special issue; and (2) the trial court’s failure to submit
a parole instruction. Concluding that Baker has failed to make the
requisite showing, we DENY his request for a COA.
I. FACTUAL AND PROCEDURAL HISTORY
In 1995, a jury convicted Baker of the capital offense of the
intentional murder of Wayne Walters while in the course of committing
and attempting to commit robbery pursuant to § 19.03(a)(2) of the Texas
Penal Code. At the conclusion of the punishment phase, two special
issues were submitted to the jury pursuant to article 37.071 § 2(b)
and (e) of the Texas Code of Criminal Procedure. Based on the jury’s
responses, the trial court sentenced Baker to death. On direct
appeal, the Texas Court of Criminal Appeals affirmed the conviction
and sentence. Baker v. State of Texas, 956 S.W.2d 19
(Tex.Crim.App. 1997).
Baker filed an application for state habeas relief, and, after
conducting an evidentiary hearing, the trial court recommended denying
relief. In an unpublished order, the Texas Court of Criminal Appeals
denied relief, stating that the trial court’s findings of fact and
conclusions of law were supported by the record and that Baker’s
allegations were without merit.
Subsequently, Baker filed the instant federal habeas petition in
2
district court. The district court denied his petition and his request
for a COA. Baker now requests a COA from this Court.
II. ANALYSIS
A. STANDARDS OF REVIEW
Baker filed his section 2254 application for habeas relief
after the April 24, 1996 effective date of the Antiterrorism and
Effective Death Penalty Act (AEDPA). His application is therefore
subject to the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336, 117
S. Ct. 2059, 2068, 138 L. Ed. 2d 481 (1997). Under the AEDPA, a
petitioner must obtain a COA. 28 U.S.C. § 2253(c)(2). A COA will
be granted only if the petitioner makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make such a showing, a petitioner “must 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.” Barefoot v.
Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 3394 n.4 (1983)
(citation and internal quotation marks omitted). Any doubt
regarding whether to grant a COA is resolved in favor of the
petitioner, and the severity of the penalty may be considered in
making this determination. Fuller v. Johnson, 114 F.3d 491, 495
(5th Cir. 1997).
To determine whether a COA should be granted, we must be
mindful of the deferential scheme set forth in the AEDPA. Hill v.
3
Johnson, 210 F.3d 481, 484-85 (5th Cir. 2000). Pursuant to 28
U.S.C. § 2254(d), we defer to a state court’s adjudication of
petitioner’s claims on the merits unless the state court’s decision
was: (1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States;” or (2) “resulted in a decision that was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” A state court’s
decision is deemed contrary to clearly established federal law if
it reaches a legal conclusion in direct conflict with a prior
decision of the Supreme Court or if it reaches a different
conclusion than the Supreme Court based on materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 120
S. Ct. 1495, 1519-20 (2000). A state court’s decision constitutes
an unreasonable application of clearly established federal law if
it is objectively unreasonable. Id. at 1521.
Further, state court findings of fact are presumed to be
correct, and the petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence.
Section 2254(e)(1).
B. DENIAL OF MEANINGFUL APPELLATE REVIEW
On direct appeal, Baker argued that the evidence was insufficient
to support a finding that there were no mitigating circumstances to
4
warrant that a sentence of life imprisonment be imposed.1 The Texas
Court of Criminal Appeals refused to review the claim, opining as
follows:
[W]e have previously stated that we will not
review sufficiency of the evidence as regards the
mitigation special issue. McFarland v. State, 928
S.W.2d 482 (Tex.Cr.App. 1996). The weighing of
mitigating evidence is a subjective determination
undertaken by each individual juror, and we
decline to review that evidence for sufficiency.
Id. at 498. Finally, we have previously held that
article 44.251 does not require this Court to
conduct a sufficiency review of the mitigation
issue. Id.
Baker v. State, 956 S.W.2d 19, 22 (Tex.Crim.App. 1997).
In his state habeas application, Baker did not argue that he had
been denied meaningful appellate review of the jury’s determination of
the mitigating special issue. Based on his failure to exhaust the
claim, the respondent argued in federal district court that Baker’s
claim should be procedurally barred. See Nobles v. Johnson, 127 F.3d
1
Article 37.071(e)(1) of the Texas Code of Criminal Procedure
mandates that:
The court shall instruct the jury that if the jury
returns an affirmative finding to each issue
submitted under Subsection (b) of this article, it
shall answer the following issue:
Whether, taking into consideration all of the
evidence, including the circumstances of the
offense, the defendant's character and background,
and the personal moral culpability of the
defendant, there is a sufficient mitigating
circumstance or circumstances to warrant that a
sentence of life imprisonment rather than a death
sentence be imposed.
5
409, 423 (5th Cir. 1997). Notwithstanding the respondent’s argument,
the district court denied Baker’s claim on the merits as permitted by
28 U.S.C. § 2254(b)(2).
On appeal, the respondent reurges its argument that Baker’s claim
is procedurally barred. We, like the district court, deny relief based
on the merits of the claim under 28 U.S.C. § 2254(b)(2).2
In Hughes v. Johnson, 191 F.3d 607, 622-23 (5th Cir. 1999), the
petitioner argued that due process requires independent appellate review
of whether the mitigating evidence undermines his deathworthiness. We
recognized that when a state provides for the imposition of a death
sentence within the discretion of a jury, the defendant “has a
substantial and legitimate expectation that he will be deprived of his
liberty only to the extent determined by the jury in the exercise of its
statutory discretion, and that liberty interest is one that the
Fourteenth Amendment preserves against arbitrary deprivations by the
State.” Id. at 623 (quoting Hicks v. Oklahoma, 447 U.S. 343, 346, 100
S. Ct. 2227, 2229 (1980)).
We explained, however, that while some states require independent
review of a death sentence, Texas has no such requirement. “Texas is
a ‘non-weighing state’ in that its capital-sentencing scheme does not
direct the appellate court or even the jury to ‘weigh’ aggravating
2
We note our precedent suggests that, absent an applicable
exception to the exhaustion requirement, federal courts lack the power
to grant relief on unexhausted claims. See Alexander v. Johnson, 163
F.3d 906, 908 (5th Cir. 1998); Jones v. Jones, 163 F.3d 285, 299 (5th
Cir. 1998).
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factors against mitigating ones.” Id. at 623 (citing James v. Collins,
987 F.2d 1116, 1120 (5th Cir. 1993); Williams v. Cain, 125 F.3d 269,
281, 283 (5th Cir. 1997)). In non-weighing states, the statutory
aggravating factors fulfill the Eighth Amendment purpose of “narrow[ing]
and channel[ing] the jury’s discretion by separating the class of
murders eligible for the death penalty from those that are not.” Id.
We therefore rejected his claim, stating that precedent did not support
his argument that due process requires independent appellate review of
the mitigating circumstances. Id.
Additionally, in Beazley v. Johnson, 242 F.3d 248, 260 (5th Cir.
2001), the petitioner similarly challenged the Court of Criminal
Appeals’ practice of refusing to review the sufficiency of mitigating
evidence. This Court concluded that “[t]o the extent Beazley raises a
constitutional claim, we conclude that, regardless of whether the Texas
court reviews the jury verdict under the mitigation special issue or the
future dangerousness special issue, ‘meaningful appellate review’ has
been afforded.” Id. at 261 (quoting McFarland v. Texas, 928 S.W.2d 482,
498 (Tex.Crim.App. 1996)).
In the case at bar, it is undisputed that the Court of Criminal
Appeals reviewed the sufficiency of the evidence with respect to the
jury’s finding of future dangerousness. See Baker, 956 S.W.2d at 21
(holding that the evidence was sufficient to support the jury’s finding
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of future dangerousness).3
As such, under our precedent, Baker has not made a substantial
showing of the denial of a constitutional right.
C. JURY INSTRUCTION REGARDING PAROLE ELIGIBILITY
Baker next contends that he is entitled to a COA based on the
state trial court’s failure “to sua sponte instruct the jury on the
minimum time he would have to serve before attaining parole
eligibility.”
Shortly after beginning its deliberations at the penalty phase, the
3
Before concluding that the evidence was sufficient to show
future dangerousness, the Court reviewed the evidence as follows:
The evidence, viewed in a light most favorable to
the jury's finding, shows the following: Appellant
intended to kill his former employer. After
walking nearly two miles in pursuit of his plan,
he became hot and decided to steal a truck. He
went into the Adult Video Store in College
Station, where Wayne Williams, the night clerk,
was working alone. Appellant took from Williams
the keys to his truck, the currency from the cash
register, and the night's receipts. Appellant then
shot Williams three times. Appellant fled the
scene in William's vehicle, returned home and
loaded the stolen vehicle with his gear. The items
found in the vehicle included the murder weapon,
ammunition, a brass knuckled stiletto, a
bulletproof vest, a garrote, and a variety of
survival gear. In a notebook seized by police,
appellant had written his goals for the year,
which included, "30+ victims dead. 30+ armed
robberies. Steal a lot of cars." Furthermore,
on the day of his arrest appellant showed no
remorse. We hold that the evidence presented in
the instant case is sufficient to support the
jury's finding regarding appellant's future
dangerousness.
956 S.W.2d at 21.
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jury sent a note to the trial court with the following question: “Is
life in prison really life in prison, or is the prisoner able to be
paroled at some future date[?]” The trial court proposed responding
with an instruction that no further instructions could be given. The
court then inquired as to the position of the State. The prosecutor
stated that he would defer to defense counsel. Defense counsel
expressly stated that “we would go with the instruction that the judge
prepared.”4
In Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187
(1994), the Supreme Court held that if a defendant’s future
dangerousness is at issue and state law prohibits the defendant’s
release on parole, due process requires that the sentencing jury be
informed that the defendant is ineligible for parole. This Court
has explained Simmons requires that a jury be informed with respect
to a defendant's parole ineligibility only when (1) the state
argues that a defendant represents a future danger to society, and
(2) the defendant is legally ineligible for parole. Allridge v.
Scott, 41 F.3d 213, 222 (5th Cir. 1994) (footnote omitted).
Simmons is inapposite. The defendant in Simmons was not eligible
for parole. Because Baker would have been eligible for parole
under Texas law if sentenced to life, our precedent renders his
4
Subsequently, during a hearing on a motion for new trial,
defense counsel explained that he had “hoped [the jury] would think life
meant life.”
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reliance on Simmons “unavailing.” Id.5 See also Johnson v. Scott,
68 F.3d 106, 112 (5th Cir. 1995) (“We have consistently held,
however, that neither the due process clause nor the Eighth
Amendment compels instructions on parole in Texas.”)
Here, it is undisputed that Texas did not statutorily provide a
sentence of life without parole at the penalty stage. Indeed, Baker
concedes that prior Fifth Circuit law “is against him.” Nonetheless,
he asserts that in light of a study that “confirms that the more
accurate knowledge a jury has of a defendant’s actual time to be served
with a life sentence, the greater likelihood of a defendant receiving
that sentence,” we should look at this claim anew.6 Of course, pursuant
to our intra-circuit rule of stare decisis, one panel may not overrule
a prior decision of this Court in the absence of an intervening contrary
or superseding decision by this Court sitting en banc or by the United
5
Recently, the Supreme Court has reaffirmed the application
of its decision in Simmons. See Shafer v. South Carolina, __ U.S.
__, 121 S. Ct. 1263 (2001). Under South Carolina’s new sentencing
scheme, if the jury does not unanimously find a statutory
aggravating circumstance, a life sentence with parole eligibility
after thirty years is an option. S.C.Code Ann. § 16-3-20(A) (Supp.
1993). However, upon finding the presence of a statutory
aggravating circumstance, the jury has no choice other than to
recommend a sentence of either death or life imprisonment without
parole. In Shafer, the Supreme Court held that “whenever future
dangerousness is at issue in a capital sentencing proceeding under
South Carolina’s new scheme, due process requires that the jury be
informed that a life sentence carries no possibility of parole.”
Id. at 1273.
6
The study Baker cites is William J. Bowers and Benjamin D.
Steiner, Death by Default: An Empirical Demonstration of False and
Forced Choices in Capital Sentencing, 77 Tex.L.Rev. 605 (1999).
10
States Supreme Court. Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir.
1998).
Accordingly, in light of this Court’s precedent, Baker cannot
make a substantial showing of the denial of a constitutional right with
respect to his challenge to the jury instructions.7
For the above reasons, we conclude that Baker has not made a
substantial showing of the denial of a constitutional right and DENY
7
Finally, under the heading of “Ineffective Assistance of
Counsel Claims,” Baker asserts that the district court “applied a far
too restrictive degree of deference to the state legal conclusions.
Under the appropriate standard of Williams v. Taylor, [he] would be
entitled to relief.” That is the entirety of his argument. Because
Baker failed to brief any claim of ineffective assistance of counsel,
he has effectively abandoned any such claim. See Trevino v. Johnson,
168 F.3d 173, 181 n.3 (5th Cir. 1999) (explaining that a list of 11
additional, undeveloped arguments were waived); see also Martin v. Cain,
246 F.3d 471, 475 n.1 (5th Cir. 2001) (noting that we refused to
consider claims that were not briefed even though petitioner requested
a COA with respect to the “full range” of ineffective assistance
claims).
In any event, the district court denied Baker’s petition prior to
the Supreme Court’s decision in Williams v. Taylor, 529 U.S. 362, 120
S. Ct. 1495. In Williams, the Supreme Court explained that when making
the “unreasonable application” determination, federal courts should
inquire whether the state court’s application of clearly established
federal law was objectively unreasonable. 120 S. Ct. at 1521. The Court
specifically noted that, in Drinkard v. Johnson, 97 F.3d 751 (5th Cir.
1996), we apparently had applied the reasonable jurist standard in a
subjective manner. Id. at 1522.
Here, although the district court did cite Drinkard in its opinion,
it did not appear to apply the overly stringent standard. Indeed, it
properly analyzed Baker’s non-procedurally defaulted claims of
ineffective assistance under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984), and concluded at one point that the “state
court’s findings and conclusions comport with established federal law.”
The district court agreed with the state court’s determinations under
Strickland. In other words, because the district court agreed with the
state court’s application of federal law, it never had to decide whether
the application of law was objectively or subjectively unreasonable.
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his request for a COA.
DENIED.
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