Lockhart v. Johnson ( 1997 )

REVISED
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 96-50642
_____________________________________
MICHAEL LEE LOCKHART,
Petitioner-Appellant,
VERSUS
GARY JOHNSON, Director, Texas Department of
Criminal Justice, Institutional Division,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________________________________
January 9, 1997
Before DAVIS, JONES and DUHÉ, Circuit Judges.
DAVIS, Circuit Judge:
Michael Lee Lockhart, a Texas death row inmate, seeks a
certificate of probable cause (CPC) or a certificate of
appealability (COA) to challenge the district court's dismissal of
his habeas petition. Because Lockhart has not made a substantial
showing of the denial of a constitutional right, we deny the COA.
I.
A.
Lockhart was indicted in Jefferson County, Texas, for the
capital murder of Police Officer Paul Hulsey, Jr., in Beaumont,
Texas. Upon an agreed motion, venue was transferred to Bexar
County, Texas. Lockhart was tried before a jury upon a plea of not
guilty, and in October 1988, the jury found him guilty of capital
murder. Following a separate punishment hearing, the same jury
answered affirmatively the three special issues submitted pursuant
to former Article 37.071(b) of the Texas Code of Criminal
Procedure. The trial court then sentenced Lockhart to death.
Lockhart directly appealed his conviction and sentence to the
Texas Court of Criminal Appeals, which affirmed the conviction and
sentence in December 1992. Lockhart v. State, No. 70734 (Tex.
Crim. App. Dec. 2, 1992).1 Lockhart then petitioned the United
States Supreme Court for writ of certiorari, which was denied in
October 1993. Lockhart v. Texas, 114 S. Ct. 146 (1993).
In July 1993, the trial court scheduled Lockhart's execution
for November 23, 1993. Six days before his scheduled execution,
Lockhart filed in the trial court a pro se request for appointment
of counsel and motion for stay of execution. The trial court
denied Lockhart's requested stay. The Texas Court of Criminal
Appeals affirmed the trial court's denial of a stay on the ground
that no colorable claim for habeas relief had been asserted and,
therefore, the trial court's jurisdiction to enter a stay had not
been invoked. Ex parte Lockhart, 868 S.W.2d 346, 349 (Tex. Crim.
App. 1993).
1
A portion of the opinion was published. Lockhart v. State,
847 S.W.2d 568 (Tex. Crim. App. 1992).
2
In November 1993, Lockhart filed a pro se motion for
appointment of counsel and a request for stay of execution in the
U.S. District Court. The district court granted a stay of
execution and appointed counsel. Counsel then filed a habeas
petition. The Director filed his answer and motion for summary
judgment and petitioner responded to the Director's motion. In
July 1996, the district court granted the Director's motion for
summary judgment and denied habeas relief.
In August 1996, the trial court scheduled Lockhart's execution
for September 10, 1996. Lockhart then filed a notice of appeal,
along with an application for certificate of probable cause to
appeal and a motion to stay his execution pending appeal. We
stayed Lockhart's execution pending this appeal.
B.
On March 22, 1988, Beaumont Police Officer Paul Hulsey, Jr.
saw appellant driving a red Corvette with a Florida license plate
in Beaumont, Texas. Officer Hulsey saw that appellant's passenger
was a local drug dealer. When appellant saw the officer, he sped
away. Officer Hulsey gave chase, but was unable to catch him.
Later that evening, Officer Hulsey spotted appellant's red Corvette
in a motel parking lot and learned that he was in the motel.
Officer Hulsey went to appellant's motel room to arrest him, and
Lockhart shot Officer Hulsey.
According to Lockhart's statement to police, when Officer
Hulsey entered Lockhart's room, Lockhart knew Hulsey did not have
a backup and he planned to get his gun and "get the drop on" the
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officer. Hulsey apparently saw Lockhart's gun, because Hulsey
ordered Lockhart to put his hands on the wall. Lockhart responded,
"Why?" and Hulsey said "you have a gun." Lockhart continued to
argue with Hulsey. Hulsey then unholstered his gun and Lockhart
complied with his demand to place his hands on the wall. However,
Lockhart placed his hands on the wall next to a mirror enabling him
to see Hulsey's actions. When Hulsey walked up behind Lockhart and
lowered his gun to put it in his holster,2 Lockhart turned and hit
Hulsey in the face. A fight ensued, and Hulsey's gun discharged.
Lockhart, who had managed to obtain his gun in the struggle, shot
Hulsey and then, after a brief time, he shot Hulsey again. Hulsey
"begged" Lockhart not to shoot anymore. Lockhart grabbed his keys
and money and left the room.
On August 18, 1988, after his trial had been proceeding for
about two weeks, Lockhart was taken to the courtroom after lunch
and was uncuffed as usual. Lockhart bolted for the window in the
third-floor courtroom and dove through it. Lockhart was captured
shortly afterwards and taken to a local hospital to be treated for
his injuries.
II.
A.
Lockhart raised fifteen claims in the district court but he
only raises challenges in this court to the district court's
rejection of three of his claims. Two of the claims the petitioner
2
As Lockhart was telling this, he reiterated that this was
how Hulsey "really fucked up."
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presents to us were expressly rejected by the Texas Court of
Criminal Appeals on direct appeal. That court found no merit to
Lockhart's argument that he was denied a fair trial when the trial
court impermissibly had him shackled and handcuffed during the
trial. The Texas Court of Criminal Appeals also denied relief to
Lockhart on his claim that the trial court erred in granting
Lockhart's request to leave the courtroom during a portion of the
voir dire examination.
Lockhart presents a third claim to this court that has never
been presented to the state court, and the Director has waived the
exhaustion requirement. This claim is predicated on the fact that
Lockhart's counsel--or his law firm--was actively representing the
trial judge in an unrelated civil action. Lockhart argues that his
trial counsel was ineffective in failing to either provide him with
conflict-free representation, move for the recusal of the trial
judge, advise Lockhart of the ongoing nature of counsel's
representation of the trial judge, or offer to withdraw from
petitioner's representation. We consider below our standard of
review for Lockhart's claims and apply that standard to those
claims.
B.
This court in Drinkard v. Johnson, 97 F.3d 751 (5th Cir.
1996), concluded that §§ 102 and 104 of the Anti-Terrorism and
Effective Death Penalty Act (AEDPA) applied to pending habeas
cases. See also Moore v. Johnson, No. 95-20871, slip op. at 997-
999 (5th Cir. Dec. 6, 1996) (explaining retroactive effect of
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AEDPA). Section 1043 (to be codified at 28 U.S.C. § 2254(d))
provides:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim--
(1) resulted in a decision that was
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.
Interpreting that section in Drinkard, we concluded that
subsection (d)(2) of § 2254 applied to a state court's factual
determinations. We concluded that this subsection "permits federal
court relief if the state court adjudication of the claim ‘resulted
in a decision that was based on an unreasonable determination of
the facts in light of the evidence.’" Drinkard, 97 F.3d at 767
(quoting § 2254(d)). We held that subsection (d)(1) governed our
review of questions of law and mixed questions of law and fact.
The first clause of this subsection permits a federal court to
grant habeas relief for legal error only if it determines that a
state court's decision rested on a legal determination that was
"contrary to . . . clearly established federal law as determined by
the Supreme Court." Id. at 768. When reviewing a mixed question
of law and fact, "a federal court may grant habeas relief only if
it determines that the state court decision rested on "an
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unreasonable application of clearly established federal law as
determined by the Supreme Court" to the facts of the case. Id.
C.
The Texas Court of Criminal Appeals rejected, on the merits,
Lockhart's arguments that the trial court erred in allowing
Lockhart to be handcuffed and shackled in the presence of the jury
and in allowing Lockhart to leave the courtroom during part of the
voir dire.
With respect to Lockhart's first claim, restraining a
disruptive defendant does not offend any clearly established
Supreme Court precedent. On the contrary, the Supreme Court has
expressly held that the use of such visible restraints is
appropriate under certain circumstances. See Illinois v. Allen,
397 U.S. 337, 343-44 (1970). The decision to restrain an
obstreperous defendant with visible restraints lies within the
sound discretion of the trial judge. Id. The Texas Court of
Criminal Appeals reasonably concluded that the trial court did not
abuse its discretion in visibly restraining Lockhart. Lockhart had
previously attempted a daring escape from the courthouse by bolting
and diving through a closed third story window. Also, the trial
court heard testimony that Lockhart had threatened to cause trouble
for the deputies who escorted him to and from court. Additionally,
Lockhart reacted to a ruling during a pretrial hearing by standing
up and yelling obscenities and resisting the efforts of officers to
control him and remove him from the courtroom. Thus, the Texas
Court of Criminal Appeals' resolution of this claim does not offend
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any clearly established Supreme Court precedent. Neither does its
application of the law to the facts of this case represent an
unreasonable application of that law. Lockhart has failed to make
a substantial showing of the denial of a constitutional right with
respect to this claim.
We now turn to Lockhart's claim that the trial court
impermissibly conducted voir dire outside his presence. The trial
court permitted Lockhart to leave the courtroom only after an
insistent request by Lockhart to do so. The state court found that
Lockhart was physically capable of remaining in the courtroom but
voluntarily waived his right to be present.
Lockhart points to no clearly established Supreme Court
precedent that prohibits criminal defendants from voluntarily
waiving their presence during the jury selection process. Assuming
that Supreme Court precedent exists which requires the state to
permit a defendant who wishes to do so to be present during jury
selection, here the defendant voluntarily left the courtroom
knowing that he had the right to remain. The state court's
rejection of Lockhart's claim under these circumstances is not an
unreasonable application of the law to the facts. We are also
persuaded that Lockhart has failed to make a substantial showing of
the denial of a constitutional right with respect to this claim.
D.
Lockhart asserts finally that his counsel provided ineffective
assistance because he had a conflict of interest in representing
Lockhart when his counsel's law firm also represented the trial
8
judge in an unrelated civil action. As stated above, this claim
was not presented to the state court, and the Director has waived
the exhaustion requirement. Consequently, the AEDPA's provision
altering our standard of review, when the petitioner's claim has
been adjudicated on the merits by a state court, has no application
to this claim. The district court rejected this claim as a matter
of law. We review the district court's legal conclusions de novo.
Lockhart argues that his counsel's conflict of interest resulted
in him receiving ineffective assistance of counsel in a number of
respects. He argues that counsel failed to provide him with
conflict-free representation, to seek the disqualification of the
trial judge, advise him of the nature of defense counsel's
representation of the trial judge, or to withdraw from his
representation. Lockhart argues that his trial counsel's failure
to provide conflict-free representation created a per se conflict
of interest under Cuyler v. Sullivan, 446 U.S. 335 (1980).
As the district court observed, we have not read Cuyler this
broadly. In Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995) (en
banc), cert. denied 116 S. Ct. 1547 (1996), our en banc court
determined that Cuyler is primarily reserved for the circumstance
where counsel represents multiple clients with conflicting
interests. We concluded that a petitioner asserting ineffective
assistance of counsel claims predicated on some other conflict of
interest must ordinarily satisfy both prongs of the test set forth
in Strickland v. Washington, 466 U.S. 668, 687 (1984). As in
Beets, if we assume arguendo that petitioner's trial counsel
9
breached some duty to Lockhart by continuing to represent him while
counsel's firm was representing the trial judge in an unrelated
civil matter, that breach does not establish a per se violation of
petitioner's Sixth Amendment right to effective assistance. To
warrant federal habeas relief under Strickland, petitioner must
demonstrate error by counsel that fell below an objective standard
of reasonableness and that this error prejudiced his case. To
establish the prejudice prong of Strickland, petitioner must show
a reasonable probability that counsel's error changed the result of
the trial. Strickland, 466 U.S. at 687, 694. We agree with the
district court that Lockhart demonstrated no basis for a finding of
prejudice. Petitioner does not specify any decision by defense
counsel which was affected by his firm's representation of the
trial judge on an unrelated matter. He also fails to cite any
legal authorities on which counsel could have based a motion to
disqualify the trial judge. In sum, petitioner fails to allege any
steps his counsel took or failed to take as a result of this
relationship that affected his defense. Because petitioner failed
to allege facts from which a factfinder could infer that he was
prejudiced from the relationship between the trial judge and his
counsel's law firm, the district court correctly rejected
Lockhart's ineffective assistance of counsel claims.
III.
For the reasons stated above, we conclude that Lockhart has
not made a substantial showing of the denial of a constitutional
10
right. We therefore deny the certificate of appealability and
vacate the stay of execution we entered earlier.
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