Hawkins v. Collins ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 88-1995
SAMUEL CHRISTOPHER HAWKINS,
Petitioner-Appellant,
versus
JAMES A. COLLINS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
( December 23, 1992 )
Before KING, HIGGINBOTHAM, and JONES, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
I
Samuel Christopher Hawkins was convicted of capital murder by
a jury in the 99th Judicial District Court of Lubbock County, Texas
on March 15, 1978, and after a sentencing hearing was sentenced to
death. The Texas jury convicted Hawkins, a black man, for the rape
and murder of Abbe Rodgers Hamilton, a pregnant white woman. He
brings in this third federal habeas petition related claims.
First, he urges that the jury could not give expression to his
mitigating evidence under the interrogatories then submitted in
capital cases. Second, he urges that his opportunity to offer
mitigating evidence was frustrated by the jury's inability under
its instructions to separate the negative from the positive in
viewing his evidence. We find that Hawkins' claims should have
been included in at least his second federal petition and are now
barred.
II
Five years after trial, the Texas Court of Criminal Appeals
rejected fifteen assigned errors and affirmed the conviction and
sentence. Hawkins v. State, 660 S.W.2d 65 (Tex. Crim. App. 1983)
(en banc).1 Hawkins filed his first federal habeas petition while
his direct appeal was pending, and it was dismissed for failure to
exhaust state remedies. Without filing a state habeas petition,
Hawkins filed his second federal petition on November 4, 1983.
After extensive proceedings, the federal district court determined
Hawkins to be competent and granted his request to proceed pro se.
The magistrate-judge warned Hawkins of the hazards of representing
himself, but when he persisted granted Hawkins' counsel leave to
withdraw. The magistrate-judge then gave Hawkins leave to add any
claims but when he added none, denied Hawkins' federal petition.
The dismissed petition contained neither of the two claims now
asserted. We affirmed. Hawkins v. Lynaugh, 844 F.2d 1132 (5th
Cir. 1988). The Supreme Court denied certiorari, 488 U.S. 900(1988).
1
The court initially remanded for a competency hearing, but
Hawkins expressly waived the issue and the Texas Court of
Criminal Appeals accepted the waiver.
2
After some confusion over who represented Hawkins, two lawyers
filed another state petition with the state trial court on December
5, 1988, and four days later the Texas Court of Criminal Appeals
denied relief. The present petition was then filed in federal
court on December 9, 1988. The district court, after some initial
confusion, denied a stay of the then scheduled execution and denied
a certificate of probable cause. We in turn refused a certificate
of probable cause and denied a stay. We did not rest on writ
abuse, finding instead that the Penry claim lacked sufficient merit
under circuit law to warrant a certificate of probable cause. We
declined to foot our ruling on abuse of the writ, because we were
then unsure of the legal effect of Hawkins' sometimes pro se status
in pursuit of collateral review. Hawkins v. Lynaugh, 862 F.2d 487(5th Cir. 1988). The Supreme Court vacated and remanded for
reconsideration in light of Selvage v. Collins, 494 U.S. 1013, 110
S. Ct. 1313 (1990) and Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct.
2934 (1989). On April 2, 1990, we stayed proceedings pending
answer to the question we certified to the Texas Court of Criminal
Appeals in Selvage. We then ordered further briefing on April 29,
1992 and have received those briefs.
At trial, the jury heard evidence regarding Hawkins'
psychological and emotional difficulties. Dr Hugh Pennal, a
psychiatrist, related Hawkins' social history. Pennal related that
Hawkins' father was a minister who beat him and taught him to hate
white people and to strike at them through their "women". A
clinical psychologist testified that Hawkins suffered a severe
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mental disorder, including delusions about oppressed blacks and
that at times in his life Hawkins had been insane. There was
additional evidence of Hawkins' sexual urges, his anger and
feelings of inferiority. Hawkins also contends that there was
additional evidence that might have been offered at trial if there
were a means for the jury to give it expression without condemning
Hawkins with the same evidence in answering the questions of future
dangerousness and deliberateness.
III
Any promise of the Supreme Court's remand in Selvage, and the
later answer by the Texas Court of Criminal Appeals that Texas
would not insist on a contemporaneous objection, has proved empty
to petitioners such as Hawkins who fail to assert any Penry claim
in their first federal petition. As we explained in Selvage v.
Collins, 972 F.2d 101, 103 (5th Cir. 1992), "We recognize that in
practical terms this means that federal courts will not entertain
"Penry" error in a successive federal writ. This is the direct sum
of McCleskey and Sawyer." Finally, we have since answered the
question of the knowledge chargeable to an unrepresented habeas
petitioner in favor of the state. Saahir v. Collins, 956 F.2d 115,
118 (5th Cir. 1992) ("McCleskey ``knew or reasonably should have
known' standard for cause applies irrespective of whether he was
represented by counsel when he filed any previous petitions.")
We are offered no sufficient legal cause for Hawkins' failure
to assert his present claims in his earlier petitions; controlling
precedent requires that we affirm the district court's denial of
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relief. Our stay is vacated and a certificate of probable cause is
DENIED.
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