Romero v. Collins ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-7331
JESUS ROMERO, JR.,
Petitioner-Appellee,
versus
JAMES A. COLLINS, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(May 19, 1992)
Before GARWOOD, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
The State of Texas asks that we vacate an order of the United
States District Court for the Southern District of Texas staying an
execution scheduled between the hours of midnight and sunrise on
May 20, 1992. For the reasons stated, we grant the State's motion
and vacate the stay of execution.
I.
A jury in the 197th District Court of Cameron County, Texas
convicted Romero of capital murder on July 19, 1985. The jury
answered "yes" to the statutory special issues and the trial judge
sentenced Romero to death as required by Texas law.
The Texas Court of Criminal Appeals affirmed Romero's
conviction and sentence on direct appeal on September 17, 1986.
See Romero v. State, 716 S.W.2d 519 (Tex. Crim. App. 1986). On
January 27, 1987, the Supreme Court denied Certiorari. See Romero
v. Texas, 479 U.S. 1070 (1987). On March 20, 1987, Romero sought
habeas corpus relief in state post-conviction proceedings, and the
state district court recommended that Romero be denied relief. The
Texas Court of Criminal Appeals remanded the case to the trial
Court with instructions to conduct a hearing on the issue of
ineffective assistance of counsel. See Ex Parte Romero, No.
16,943-01 (Tex. Crim. App. March 24, 1987). On May 28, 1987, after
the hearing, the trial court issued findings of fact and
conclusions of law, recommending that relief be denied. The Texas
court of Criminal Appeals denied Romero's petition without a
written order. See Ex Parte Romero, No. 16,943-01 (Tex. Crim. App.
June 9, 1987).
Romero filed a Petition for Writ of Habeas Corpus in the
United States District Court for the Southern District of Texas on
July 16, 1987. In his petition, Romero argued that his trial
counsel was ineffective for several reasons, among them that
counsel failed to argue Romero's youth, intoxication and troubled
family background as mitigating factors during the penalty phase of
his trial. The federal district court granted the writ based on
counsel's failure to offer more extensive argument regarding
Romero's mitigating factors. We reversed and remanded with
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instructions to dismiss the petition. See Romero v. Lynaugh, 884
F.2d 871 (5th Cir. 1989), cert. denied, 110 S. Ct. 1311 (1990).
On April 4, 1990, Romero filed a second Petition for Writ of
Habeas Corpus in the 197th District Court of Cameron County, Texas
and in the Texas Court of Criminal Appeals. Relying on the U.S.
Supreme Court's decision in Penry v. Lynaugh, 492 U.S. 302 (1989),
Romero alleged that the Texas special issues precluded the jury
from considering and giving full effect to the mitigating evidence
of Romero's youth, intoxication and turbulent family background.
On November 6, 1991, the Texas Court of Criminal Appeals, en banc
with two dissents, denied relief. Romero's Motion for Rehearing
was denied on December 11, 1991. On December 16, 1991, the Texas
Court of Criminal Appeals granted Romero's motion to stay the
mandate. On March 10, 1992, Romero filed a Petition for Writ of
Certiorari in the U.S. Supreme Court. This petition is still
pending.
On April 15, 1992, the state trial court set the date for
Romero's execution for May 20, 1992. On May 15, 1992, Romero filed
a third Application for Post-conviction Habeas Corpus in the 197th
Judicial District Court, Cameron County, Texas and in the Court of
Criminal Appeals. Romero asserted the first five of his six claims
for the first time in his third state habeas petition. The sixth
claim, asserting Penry violations, was made for the first time in
the second state habeas petition. On May 18, 1992, the state trial
court entered findings of fact and conclusions of law recommending
that all relief be denied. The Texas Court of Criminal Appeals
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denied relief on May 19, 1992 and Romero filed his second federal
petition with the United States District Court for the Southern
District of Texas. On May 19th the federal district court granted
Romero's petition for stay and set an evidentiary hearing for May
22, 1992 to consider the issue of writ abuse, whether petitioner
received competent psychiatric evaluations before trial,
prosecutorial misconduct "concerning the issue of petitioner's
mental state," and effectiveness of counsel's "investigation" of
petitioner's mental state at the time of the crime and trial. The
state has moved to vacate the stay of execution.
II.
In this, his second federal habeas petition, Romero asserts
six claims for relief. He first argues that because he was insane
at the time of the offense and thus innocent, his execution would
violate the eighth and fourteenth amendments. Second, Romero
claims that he was denied effective assistance of counsel at trial.
Third, Romero claims that he was denied due process because the
state failed to disclose exculpatory evidence in its possession.
Fourth, Romero claims that he was denied due process because his
court-appointed psychiatrist was incompetent. Fifth, Romero claims
that he raised his competency, but it was not adequately resolved
as required by Pate v. Robinson, 383 U.S. 375 (1966). Sixth,
Romero argues that the Texas Sentencing Scheme prevented the jury
from giving mitigating effect to his youth, turbulent family
history, and diminished role at the time of the offense, contrary
to Penry v. Lynaugh, 492 U.S. 302 (1989).
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III.
Our role in deciding a successive writ is limited. "[T]o
excuse his failure to raise [his present claims] Romero . . . must
show cause for failing to raise it and prejudice therefrom as those
concepts have been defined in . . . procedural default decisions."
McCleskey v. Zant, 111 S. Ct. 1454 (1991).
the cause standard required the petitioner to show that
"some objective factor external to the defense impeded
counsel's efforts" to raise the claim in state court.
Murray v. Carrier, 477 U.S., at 488, 106 S.Ct., at 2645.
Objective factors that constitute cause include
"`interference by officials'" that makes compliance with
the state's procedural rule impracticable, and "a showing
that the factual or legal basis for a claim was not
reasonably available to counsel." Ibid. In addition,
constitutionally "ineffective assistance of counsel . . .
is cause." Ibid. Attorney error short of ineffective
assistance of counsel, however, does not constitute cause
and will not excuse a procedural default. Id. at 486-
488, 106 S. Ct., at 2644-45. Once the petitioner has
established cause, he must show "`actual prejudice'
resulting from the errors of which he complains." United
States v. Frady, 456 U.S. 152. 168, 102 S. Ct. 1584, 1594,
71 L. Ed. 2d 816 (1982).
If petitioner cannot show cause, the failure to raise the
claim in an earlier petition may nonetheless be excused
if he or she can show that a fundamental miscarriage of
justice would result from a failure to entertain the
claim.
The Court in McCleskey explained further that the federal courts
are in any event required to entertain a successive petition when
a petitioner supplements a constitutional claim with a "colorable
showing of factual innocence." Id. at 1471. We recently explained
the requirements of actual innocence in Sawyer v. Whitley, 945 F.2d
812 (5th Cir. 1991), cert. granted, 112 S. Ct. 434. Sawyer
require[s] the petitioner to show, based on the evidence
proffered plus all record evidence, a fair probability
that a rational trier of fact would have entertained a
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reasonable doubt as to the existence of those facts which
are prerequisite under state or federal law for the
imposition of the death penalty. That is, a petitioner
is not actually innocent of the death penalty unless he
demonstrates, under all the evidence that was and
arguably should have been presented, that the jury would
not have been authorized to sentence him to death.
Id. at 820 (footnotes omitted).
In Romero's first habeas trip, he also complained that his
trial counsel was ineffective in fourteen respects. We found that
Romero was "represented by competent counsel and received a fair
trial." Romero v. Lynaugh, 884 F.2d 871 (5th Cir. 1989).
IV.
Romero offers two reasons why we should entertain his present
claims although they were not presented in his first petition. He
first argues that the state withheld mitigating evidence from him
[Claim 3]. The contention is that the state impeded his efforts to
previously raise the claim. Judge Hester, the state habeas judge,
found on May 18, 1992, however, that:
4. The State did not fail to disclose exculpatory
material to Applicant. The medical records of Romero
were at least equally available to Applicant and the
State at all times material. The report of Dr. Jorge
Cardenas dated April 2, 1985, which Applicant alleges the
State to have withheld, was a report to this Court in
Cause No. 85-CR-51-C in which Romero was charged and
convicted of Attempted Sexual Assault. Such report was
filed in the papers of that cause on April 2, 1985, a
public record and equally available to the Applicant and
the State at all times.
Romero offers no reason why we should not accord deference to this
finding of fact.
Romero argues that in his Claims 1, 2, 4 and 5, he presents
evidence of actual innocence due to his insanity. He relatedly
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argues that our recent decision in Sawyer v. Whitley, 945 F.2d 812
(5th Cir. 1991), is inapplicable to Texas' Sentencing scheme.
We need not decide the abstract question of whether legal
insanity implicates actual innocence under the McCleskey doctrine.
We are not persuaded that the recently proffered affidavits of Drs.
Diaz and Cardenas implicate actual innocence. At best, they
demonstrate, albeit not without equivocation, that had they been
aware of two earlier episodes involving Romero they would have
reached a different opinion regarding his mental capacity. Dr.
Cardenas states that he would have concluded that "at the time of
the alleged offense Romero was acting with severely diminished
capacity such that he was temporarily insane." He further
expressed doubts "whether Romero was competent to stand trial."
Dr. Diaz concluded that had he been provided with certain records
and other documents "at the time of my examination of Mr. Romero,
I might have determined, contrary to my original findings, that at
the time of the alleged offense, and as a result of his mental
disorder, he had a markedly decreased ability to know that his
conduct was wrong." The state habeas court attached to its
findings Dr. Diaz's letter to the court dated June 28, 1985. Dr.
Diaz stated then that he found Romero to be "candid and cooperative
with the examination." He explained that Romero had told him that
he had been recently released from jail on a previous charge, and
he denied any significant history of neurological or psychiatric
illnesses. He noted that "the defendant is able to remember the
events and circumstances preceding and following the incident."
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The state habeas judge found that "there is no credible evidence
that Applicant was insane at the time of the offense. To the
contrary, all the credible evidence is that the Applicant was sane
at the time of the offense and mentally competent at trial." In
short, the state habeas judge was not persuaded by the late-filed
and somewhat equivocal affidavits, a finding that is due deference
by this court.
Regardless of whether the finding of the state habeas judge
regarding the recent affidavits is fairly supportive by the record,
we are not persuaded that had this newly developed evidence been
offered at trial the jury would not have been "authorized" to
return a death sentence. The claim raises at best legal error,
short of actual innocence, however actual innocence might be
translated to the Texas system.
V.
Romero's sixth claim rests on Penry v. Lynaugh, 109 S. Ct. 2934
(1989), urging that the jury was not able to give expression to his
mitigating evidence of youth, turbulent family history,
intoxication, and role in the offense. We find that this claim
cannot be heard in this successive writ. It is no answer that
Penry was not decided until after Romero's first habeas trip. In
Selvage v. Lynaugh, 842 F.2d 89, 94 (5th Cir. 1988), we found that
as early as April 1980, a "Penry" contention, as it later became
known as, was "not a recently found legal theory not knowledgeable
by competent counsel." We found that a Penry claim was subject to
the McClesky bar. Cuevas v. Collins, 932 F.2d 1078, 1082 (5th +
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968+Cir. 1991). See also Ellis v. Collins, 956 F.2d 76, 80 (5th
Cir. 1992). It is true that Romero had commenced his first federal
habeas trip before Penry was decided and that Cuevas' first federal
habeas was pending before the United States District Court when
Penry was decided. Romero's petition was still before the federal
district court three months after the grant of certiorari in Penry.
108 S. Ct. 2896. We see no reasoned basis, however, for excusing
Romero's failure to assert a Penry claim in his first federal
habeas. We are pointed to no legal cause for Romero's not doing
so.
In sum we cannot entertain this claim unless it implicates
actual innocence. In making this judgment, we are limited to
evidence offered at trial. Texas continues to insist on its
contemporaneous objection to Penry-type claims resting on evidence
not in fact offered. Black v. State, 816 S.W.2d 350 (Tex. Cr. App.
1991). The proffered evidence of abuse as a child and of Romero's
limited role in the crime was less than compelling--as was his
evidence of intoxication. It is also the case that the jury was
able to give some effect to much of the mitigating evidence by its
answers to the interrogatories. As we said in Cuevas,
little of this Penry evidence remains after we look only
to the evidence that could not find expression in the
answer to the first interrogatory; at the least not in
such measure as to persuade that the absence of
explanatory instructions causes this trial and sentence
to be fundamentally unfair--or so raised the risk of an
erroneous sentence as to implicate actual innocence.
Id. at 1083.
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Finally, this claim fares no better if treated as an assertion
that trial counsel was ineffective in not developing the mitigating
evidence. This would add only to the Penry mix more evidence of
Romero's mental state. We have rejected directly the assertion
that this evidence sufficiently implicated factual innocence.
Relatedly, we are asked to stay this execution pending review
by the Supreme Court of our decision in Graham v. Collins, 950 F.2d
1009 (5th Cir. 1992). We are told that the Supreme Court has
scheduled the pending petition for writ of certiorari for
conference on May 29, 1992. We also note that there remains
pending, Romero's petition for writ of certiorari from the decision
of the Texas Court of Criminal Appeals denying his second state
habeas petition. As we understand it, that petition requests
relief similar to that requested here. We do not decide whether a
stay should be granted in cases reaching the merits of a Graham
contention. Rather, we are persuaded that the Penry claims now
asserted, including Romero's youth, do not sufficiently implicate
actual innocence to allow their consideration in this petition.
Romero also urges that we should grant a stay pending our
application of Sawyer v. Whitley to the Texas death penalty. We
decline to do so. Whatever actual innocence may be determined to
mean, we are not persuaded that it is sufficiently implicated here.
The state's application to vacate the stay of execution is
GRANTED.
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