Russell v. Collins ( 1993 )

                             FOR THE FIFTH CIRCUIT
                               No. 91-1354
               Appeal from the United States District Court
                    for the Northern District of Texas
                               (August 13, 1993)
    BEFORE KING, SMITH, and WIENER, Circuit Judges.
    WIENER, Circuit Judge.
         In this petition for writ of habeas corpus pursuant to 28
    U.S.C. §§ 2241, 2245, Petitioner-Appellant Clifton Charles Russell
    appeals the district court's denial of his habeas petition.        On
    appeal, Russell challenges the constitutionality of his sentencing
    proceeding which culminated in imposition of the death penalty.
    After careful consideration of the issues raised by Russell, we
    discern no reversible error and affirm.
                             FACTS AND PROCEEDINGS
         Russell was convicted of the capital murder of Hubert Otha
    Tobey, killed in the course of a robbery.        After Russell and a
    companion robbed Tobey of his money and his automobile, Russell
    struck him over the head with a large piece of concrete and
    inflicted numerous knife wounds as well, including one to the
    jugular vein.     Russell and two other men, Michael Wicker and
    William Battee, Jr. subsequently were arrested outside a mall for
    public intoxication.     Police traced the car and connected it to
    Tobey, whose body had been discovered by then.              The police then
    seized Battee's tennis shoes and Russell's pants, underwear, shirt,
    and shoes, all of which had blood on them.           The car's interior also
    contained blood stains.
         Russell was tried and convicted for capital murder.              During
    the sentencing phase of the trial, the state introduced evidence
    regarding Russell's poor reputation in the community, his tendency
    towards violence making him dangerous to society, and opinion
    testimony   suggesting   that   he   was   not   a    likely   candidate    for
         In response, Russell presented five witnesses, four of whom
    were members of various church organizations that opposed the death
    penalty per se.      In addition, Russell's mother, Jo Ann Lacy,
    testified to Russell's troubled childhood and incidents of violence
    against him.    Specifically, she recounted an incident during which
    Russell's stepfather beat him severely with a baseball bat in
    response to Russell's allegations that the shooting of his mother
    nine months earlier by his stepfather had not been accidental.
    Russell required surgery to mend his broken facial bones.                  Mrs.
    Lacy also testified that Russell did not meet his biological father
    until he was seven and never had a real father figure.                      Finally,
    she stated that Russell had suffered as a child because of his
    mixed racial parentage.
          Despite the testimony of Mrs. Lacy, the jury affirmatively
    answered the first two special issues submitted pursuant to Texas
    law: whether the defendant acted deliberately, and whether he posed
    a future danger to the community. Accordingly, the judge sentenced
    Russell     to    death.          Russell's       conviction   and   sentence      were
    automatically appealed to the Texas Court of Criminal Appeals,
    which affirmed the conviction and sentence. Russell next pursued
    his state habeas remedy, which was denied.                  Finally, Russell filed
    a petition for writ of habeas corpus in the United States District
    Court     for    the     Northern     District       of   Texas   and   received     an
    evidentiary hearing.          Russell's proceedings were stayed, however,
    pending the Supreme Court's consideration of Penry v. Lynaugh.1
    This stay was eventually lifted and the magistrate judge entered
    his     findings,        conclusions,     and      recommendation,      followed     by
    supplemental findings.              The district court adopted the report,
    dismissing the petition and withdrawing the stay of execution.
    Russell timely appealed.
    A. Standard of Review
          "In considering a federal habeas corpus petition presented by
    a   petitioner      in    state    custody,       federal   courts   must   accord a
    492 U.S. 302
    presumption of correctness to any state court factual findings. .
    . . We review the district court's findings of fact for clear
    error, but decide any issues of law de novo."2                   Evaluation of a
    petitioner's constitutional challenge to the Texas special issues
    as applied to him is, of course, an issue of law.
    B. Penry Claim
          In his first challenge to the sentencing proceedings, Russell
    relies on the Supreme Court's decision in Penry.                In that case, the
    Court ruled that the Texas special interrogatories did not allow
    the   jury   to    consider    relevant       mitigating   evidence    of    mental
    retardation and childhood abuse and therefore failed to give an
    "individual       assessment    of    the     appropriateness     of   the    death
    penalty."3    Penry, Russell claims, dictates that the district court
    erred in not granting a special instruction for his mitigating
    evidence of his youth and troubled childhood.
          The state insists, to the contrary, that Russell's claim must
    fail because Penry clearly states that a special instruction is
    required "upon request."             Yet, the state urges, Russell never
    sought a special instruction, and therefore he cannot now complain
    of the district court's error.            This argument ignores our holding
    in Mayo v. Lynaugh,4 in which we explained that Penry provides
    little     support    for     the    proposition    that    a    defendant    must
           Barnard v. Collins, 
    958 F.2d 634
    , 636 (5th Cir.
    1992)(citations omitted); see 28 U.S.C. § 2254(d).
              Penry, 492 U.S. at 319.
    893 F.2d 683
     (5th Cir. 1990).
    contemporaneously            object      to        or   request      additional        jury
    instructions.5          "Although the Court's description of the rule
    sought    by   Penry        involved    the     request    for      jury   instructions,
    discussion       of   the    important        limitations      to    the   holding     left
    unmentioned       the       role   of     the       objections       or    requests     for
    instructions,         and    several    statements        of   the   holding     likewise
    omitted any such qualification."6
         The opinion in Mayo also noted, however, that this did not
    preclude the failure to object or request additional instructions
    from operating as a procedural bar under state law.7                           Since the
    decision in Mayo, however, we have certified to the Texas Court of
    Criminal Appeals the question "whether [a] petitioner['s] . . .
    claim under Penry v. Lynaugh . . . is presently procedurally barred
    under    Texas    law."8        The     court      answered    the    question    in    the
    negative, holding that failure to object contemporaneously in pre-
    Penry cases does not create a state procedural bar as the decision
    in Penry "`constituted a substantial change in the law . . . and
    there being abundant Texas precedent demonstrating that the holding
    amounts to a right not previously recognized.'"9
             Id. at 689.
             Id. (citations omitted).
           Id. at 690 (citing Fierro v. Lynaugh, 
    879 F.2d 1276
    , 1281-
    82 (5th Cir. 1989)).
             Selvage v. Collins, 
    897 F.2d 745
    , 745 (5th Cir. 1990).
           Selvage v. Collins, 
    816 S.W.2d 390
    , 392 (Tex. Crim. App.
    1991)(quoting Black v. State, 
    816 S.W.2d 350
    , 374 (Tex. Crim.
    App. 1991)).
          In any event, the state does not argue that Russell's claim is
    procedurally barred under state law, but insists that it is barred
    under Penry, which the state           interprets erroneously as requiring
    a   request      for   instructions.      Based   on    Mayo,   we   reject   the
    government's claim that Penry imposes a procedural bar when a pre-
    Penry defendant fails to request a specialized instruction.
          As Russell is not procedurally barred from asserting the
    alleged error, we proceed to the merits of his Penry claim. In that
    case, the Supreme Court reiterated its holding in Jurek v. Texas10
    that the constitutionality of the Texas statute "turns on whether
    the enumerated questions allow consideration of particularized
    mitigating       factors."11     Consideration     of    relevant    mitigating
    evidence is required because "`the sentence imposed at the penalty
    stage should reflect a reasoned moral response to the defendant's
    background, character, and crime.'"12 Therefore, the sentencer must
    "make an individualized assessment of the appropriateness of the
    death penalty" and treat the defendant as a "`uniquely individual
    human bein[g].'"13        In making this individualized assessment, the
    sentencer must consider evidence about the defendant's background
    and character "`because of the belief, long held by this society,
    that defendants who commit criminal acts that are attributable to
    428 U.S. 262
               Id. at 272.
           Penry, 492 U.S. at 319 (quoting California v. Brown, 
    479 U.S. 538
    , 545 (1987)(emphasis in the original)).
    a disadvantaged background, or to emotional and mental problems,
    may be less culpable than defendants who have no such excuse.'"14
         Penry stands apart from the cases that preceded15 and followed
    it16 because of its ultimate conclusion: the Texas special issues
    did not give effect to petitioner's compelling evidence of mental
    retardation     and   abused   childhood   that   mitigated   his   moral
    culpability for his crime.        Penry did not invalidate the Texas
    sentencing scheme, and subsequent Supreme Court cases have refused
    to extend Penry to cover less serious mitigating evidence.17
              Russell points to three types of mitigating evidence in
    support of his Penry claim:       (1) his youth (he was age 18 at the
    time of the homicide); (2) his troubled childhood; and (3) a
    beating he suffered in his late teens at the hands of his step-
    father.     We address each type of evidence in turn.
         1.     In Johnson v. Texas,18 the Supreme Court made clear that
    the mitigating factor of a defendant's age is within the "effective
    reach" of the second special issue.        Thus, such evidence is not
            Franklin v. Lynaugh, 
    487 U.S. 164
    opinion); Jurek, 428 U.S. at 262.
           Graham v. Collins, 
    506 U.S.
    113 S. Ct. 892
    , 122 L.
    Ed. 2d 260 (1993); Johnson v. Texas, 
    61 U.S.L.W. 4738
     (U.S. June
    24, 1993)(No. 92-5653); Graham v. Collins, 
    950 F.2d 1009
    Cir. 1992)(en banc).
              See, e.g., Johnson, 
    61 U.S.L.W. 4738
    61 U.S.L.W. 4738
    problematic under Penry.19
         2. Russell's argument that his jury was unable to give proper
    mitigating weight to evidence of his troubled childhood is barred
    under the non-retroactivity doctrine announced by the Supreme Court
    in Teague v. Lane.20   In Graham v. Collins,21 the Supreme Court was
    presented with an essentially identical claim raised by a habeas
    petitioner--a Penry-type claim based on evidence of a non-abusive
    but turbulent childhood--and held that the petitioner's claim
    proposed a "new rule" under Teague.22     Russell has presented no
    evidence that his troubled childhood rose to the required level of
         3. The final type of evidence that Russell offered during the
    punishment phase described a single episode of violenceSQa severe
    beating in the face with a baseball bat by a stepfather who then
    attempted unsuccessfully to shoot Russell. Both incidents occurred
    on the same day when Russell was in his late teens.23       Russell
           Although in Graham, 113 S. Ct. at 892, the Supreme Court
    held that a habeas petitioner's Penry-type claim based on his
    youth was barred under the non-retroactivity doctrine announced
    by the Court in Teague v. Lane, 
    489 U.S. 288
     (1989), the Court
    has subsequently held, in a direct appeal case, in which Teague
    was not applicable, that such a claim has no merit. See Johnson,
    61 U.S.L.W. 4738
    . Thus, we see little need to invoke the Teague
    doctrine when the merits of a "new rule" have been reached and
    squarely rejected by the Court.
              489 U.S. at 288.
              113 S. Ct. at 892.
           See Graham, 113 S. Ct. at 902; but see id. at 917, 920
    n.2 (Souter, J., joined by Blackmun, Stevens & O'Connor,
              The record is not clear whether Russell was 17 or 18.
    attempts to characterize this occurrence as "child abuse" similar
    to the type introduced by the capital defendant in Penry.                             We
    disagree.       Russell's beating occurred when he was in his late
    teens, possibly when he was legally an adult.                     But child-abuse, as
    it is generally understood, occurs when a juvenile is of such
    tender years that a violent beatingSQor, more commonly, repeated
    beatingsSQby an adult would have the tendency to affect the child's
    moral      capacity       by   predisposing      him   or   her    toward   committing
    violence.      As the evidence here is significantly distinguishable
    from that offered in Penry, the Supreme Court's holding in Penry
    regarding mitigating evidence of child abuse is not implicated.
          More to the point, whether evidence of the violence inflicted
    on Russell by his stepfather was in the "effective reach" of jurors
    under the special issues is not relevant;24 the Eighth Amendment is
    not   implicated          in   the   first   place.         The   Supreme   Court    has
    repeatedly         held    that      there   are   three      basic   categories     of
    constitutionally           relevant     mitigating      evidence--that       which    is
    relevant      to    a     defendant's    "background,"        "character,"     or    the
    "circumstances of the crime."25              Russell's evidence of the violence
    inflicted by his father does not fall under any one of these three
    rubrics.      Russell necessarily argues that his evidence falls under
    the "background" rubric.              We disagree.
            Under precedent in this circuit, evidence of a defendant's
    background is constitutionally relevant mitigating evidence only if
               See Graham, 113 S. Ct. at 902.
               Penry, 492 U.S. at 328.
    the   crime     committed   by   the        defendant   is   in   some   sense
    "attributable" to that background.26           While "attribution" does not
    require a precise nexus between such background evidence and the
    crime, at a minimum the evidence must permit a rational jury to
    "infer that the crime is attributable," at least in part, to the
    defendant's background.27    Albeit a close call, the evidence of the
    isolated episode of violence inflicted by Russell's stepfather does
    not permit such an inference.           As noted, that incident did not
    occur during Russell's youth and was not indicative of a pattern or
    history of child abuse--at least according to the evidence offered
    during the punishment phase of Russell's trial.28                 Neither did
    Russell offer any evidence that the act of violence left him
    mentally or emotionally impaired in a manner that would permit a
    rational jury to infer that this single incident somehow made
    Russell more predisposed to commit a murder.29           While, as a general
    proposition, a rational jury may infer that child abuse renders one
    less morally culpable for a violent crime,30 the same cannot be said
               Graham, 950 F.2d at 1033 (citing Penry, 492 U.S. at 319).
               Barnard, 958 F.2d at 638 (quoting Graham, 950 F.2d at
           As noted, Russell's evidence of a troubled childhood did
    not include any evidence that he was physically abused. Rather,
    according to the evidence offered during the punishment phase,
    Russell never suffered any abuse until his late teens.
           Cf. Barnard, 958 F.2d at 638 (holding that a single head-
    beating suffered by an adult capital defendant, with no other
    evidence of any adverse effects, was not constitutionally
    sufficient to support a Penry claim).
           See Penry, 492 U.S. at 322; see also Santosky v. Kramer,
    455 U.S. 745
    , 789 (1982) (Rehnquist, J., dissenting) ("It
    for a single episode of physical abuse inflicted upon an adult.
    Thus, we reject Russell's Penry claim predicated on this evidence.
              In sum, we conclude that there was no Eighth Amendment
    violation in this case.         First, Russell's age at the time of the
    crime was cognizable under the second special issue.          Second, his
    Penry-type claim based on mitigating evidence troubled childhood is
    barred under the Teague doctrine.          Finally, evidence of a single
    episode of severe violence inflicted by an adult on an adult,
    without    more,   does   not    qualify   as   constitutionally   relevant
    mitigating evidence.
    B. Undefined use of "deliberately"
         Russell again relies on Penry to make his argument that the
    state court erred by not defining the word "deliberately" in the
    first special issue, which asks whether the defendant so acted.
    Russell recites the Court's reasoning that,
         [a]ssuming . . . that the jurors in this case understood
         "deliberately" to mean something more than that Penry was
         guilty of "intentionally" committing murder, those jurors
         may still have been unable to give effect to Penry's
         mitigating evidence in answering the first special
    This quotation from Penry, however, rests on the understanding that
    the defendant had introduced mitigating evidence beyond the scope
    of the special issues. In the instant case, however, we have
    concluded that Russell did not present any mitigating evidence that
    requires no citation of authority to assert that children who are
    abused in their youth generally face extraordinary problems
    developing into responsible, productive citizens.")
              Penry, 492 U.S. at 322.
    was outside of the scope of the first special issue.                    Thus, the
    quoted language from Penry does not advance his claim.32
    C. Exclusion of Juror
         Russell next asserts that the district court erred in applying
    a presumption of correctness to the state court's finding that
    prospective juror Norman B. Scott was properly excluded from the
    jury.         The transcript of the voir dire examination of Scott,
    reproduced in its entirety in Ex Parte Russell,33 demonstrates that
    Scott strongly opposed the death penalty, that he "did not believe
    in" the death penalty, and that he "could take the law and the
    evidence, but when it come to imposing the death penalty, I don't
    think     I    could   do   it."34    When    asked   whether   there   were   any
    circumstances under which he could assign the death penalty, he
    replied possibly so if the murder victim was a small child, but he
    was not certain.35
         Applying the test set forth in Witherspoon v. Illinois,36 as
    clarified in Adams v. Texas37 and Wainwright v. Witt,38 the Texas
    Court of        Criminal    Appeals   held    that    Scott   had   properly   been
    discharged for cause as his testimony indicated that "his views on
              Barnard, 958 F.2d at 641.
    720 S.W.2d 477
    , 477-81 (Tex. Crim. App. 1986).
              Id. at 479.
              Id. at 480-81.
    391 U.S. 510
    448 U.S. 38
    469 U.S. 412
    the death penalty would have prevented or substantially impaired
    [his]     performance     as   [a]    juror[]    in    accordance   with   [the]
    instructions."39        The Court of Criminal Appeals' factual finding
    of juror bias is entitled to a presumption of correctness under 28
    U.S.C. § 2254(d), and we find no reason why this presumption should
    not apply.40
    D. Eighth Amendment
         Russell's       final     assertion      attacks     the    constitutional
    sufficiency of the evidence at the guilt-innocence stage of trial.
    He insists that there was no evidence to prove whether the murder
    was committed by him or by his co-defendant Battee (who received a
    sixty year sentence following a guilty plea), or by both of them
    acting together.        Absent this evidence, he insists, imposition of
    the death penalty violates his due process rights and the Eighth
    Amendment's proscription against cruel and unusual punishment.                In
    addition, he argues that the disparity between his death sentence
    and Battee's sentence of sixty years for the same offense is "an
    invidious discrimination" in violation of the Equal Protection
    Clause and violates the Eighth Amendment as a disproportionate
         Enmund     v.   Florida41       construed   the    Eighth   Amendment   as
              Ex Parte Russell, 720 S.W.2d at 484.
           In fact, the standard expressed in Wainwright "does not
    require that a juror's bias be proved with `unmistakable
    clarity.'" Wainwright, 469 U.S. at 426. Rather, the
    determination is one best left to the trial judge. Id. at 426.
    458 U.S. 782
    prohibiting the imposition of the death penalty against "one who
    neither took life, attempted to take life, nor intended to take
    life."42    Thus, it is impermissible to sentence a person to death
    solely on the basis of the acts of an accomplice; there must be
    evidence    from   which   a   jury    could   determine   the   petitioner's
    individual culpability.        The state insists that the first special
    instruction, which asks "whether the conduct of the defendant that
    caused the death of the deceased was committed deliberately and
    with the reasonable expectation that the death of the deceased or
    another would result" allowed the jury to judge the evidence
    submitted against Russell.            The evidence submitted to the jury
    included Russell's possession of the car and the presence of a
    large amount of blood (compatible with the victim's) on Russell's
    clothing, consistent with someone who had brutally stabbed and
    beaten another. In contrast, the state notes that Battee had blood
    only on his shoes.         Moreover, the state emphasizes that, in
    Russell's trial, it did not focus on Battee's intent to commit the
    crime, but on Russell's.        Thus, the state concludes, a reasonable
    jury could have inferred Russell's individual culpability for the
    murder; and the jury here had the opportunity to consider that
    question under the first special issue.           We agree.
         In Jones v. Thigpen,43 we remanded for resentencing a case in
    which the only evidence was involvement in the robbery and blood
    splattered shoes.       In the instant case, however, there are two
              Id. at 786.
    741 F.2d 805
     (5th Cir. 1984)
    important distinctions. First, the jury was properly instructed to
    consider the individual culpability of the defendant sentenced to
    death.44 Second, the evidenceSQparticularly the fact that Russell's
    clothes (including his underwear) were soaked with bloodSQis very
    probative, as it is consistent with his inflicting the knife wounds
    himself. Consequently, we agree with the state's argument that the
    jury     had    the    opportunity       to      consider    Russell's        individual
    involvement in the crime and, based on the evidence, reasonably
    could have determined his guilt.
           Finally, we address Russell's claims involving the disparity
    of sentences, which are especially common when one defendant pleads
    guilty pursuant to a plea bargain and another defendant is tried by
    jury.       It is well established that a prosecutor has discretion to
    enter into plea bargains with some defendants and not with others.
    Absent      a   showing    of    vindictiveness       or    use     of   an   arbitrary
    standardSQneither of which Russell demonstratesSQthe prosecutor's
    decision is not subject to constitutional scrutiny.45
           In    this     petition   for    a     writ   of    habeas    corpus,    Russell
    challenges the imposition of the death penalty without a Penry-type
           See Skillern v. Estelle, 
    720 F.2d 839
    , 847-48 (5th Cir.
    1983)(finding the same jury instruction cured an Enmund defect.).
                Bordenkircher v. Hayes, 
    434 U.S. 357
    , 364 (1978).
    instruction.   As he fails to demonstrate mitigating evidence
    outside the scope of the special issues, he does not qualify for
    the additional instruction.   Consequently, his second claimSQthat
    the absence of a jury instruction defining the word "deliberately"
    in the first special issue precluded the jury from considering his
    mitigating evidenceSQmust also fail. We reject Russell's challenge
    to the exclusion of a potential juror on voir dire for his views on
    the death penalty.   Affording a presumption of correctness to the
    state court's finding that this exclusion was correct, we discern
    no reason why this presumption should not preclude Russell's claim.
    Finally, we hold that the jury properly considered Russell's own
    individual culpability for the murder, permissibly inferring his
    guilt from the evidence presented, and we reject his claim that the
    disparity in the sentences imposed on him and on his accomplice
    violated the Due Process Clause, the Equal Protection Clause, or
    the Eighth Amendment.
         For the foregoing reasons, the decision of the district court
    in refusing to grant the writ of habeas corpus is