White v. Johnson

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 96 - 20005
___________________________
LARRY WAYNE WHITE,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPT.
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
____________________________________________________
March 21, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges
DAVIS, Circuit Judge:
Petitioner White applies for a certificate of probable cause
to appeal the district court’s denial of habeas relief. White
claims that his pending execution will violate his eighth amendment
right to be free from cruel and unusual punishment and fourteenth
amendment right to due process of law and that he received
ineffective assistance of counsel. We vacate our stay of White’s
execution and deny White’s application for a certificate of
probable cause.
I.
In June 1979, White was convicted of the March 1, 1977 murder
of Elizabeth St. John at her apartment house, where White worked as
a maintenance man. The facts of the crime are accurately set out
in the opinion of the Court of Criminal Appeals originally
affirming White's conviction:
[T]he 72-year-old complainant, Elizabeth St. John, moved
from the Austin area to return to Houston, in late
February of 1977, about a year after her husband had
died. Mrs. St. John moved in with Lavelle Wasson, her
friend of 25 years, who owned some apartment complexes.
St. John was to occupy number three, an upstairs
apartment of the Airline complex which was in front of
the Wasson's house.
[White] had been employed by the Wassons to do
maintenance work at their Shepard apartment complex. On
Monday, Tuesday and part of Wednesday of the first week
in March, [White] and Wasson spent their time painting
St. John's apartment while she looked on. Her furniture
had already been moved in, so they "painted around it."
As the three left the apartment on Wednesday afternoon,
St. John pointed out a locking devise she had installed
on her door that made it impossible to turn the knob or
open the door from the outside, even with a key. Wasson
asked [White] to move a box spring mattress that was in
a hall corner across from St. John's apartment. [White]
said he would carry it out the next day.
[White] asked St. John if she were planning to stay up in
the apartment that night; she told him "yes."
Later in the day, St. John returned to Wasson's house to
obtain envelopes and paper for writing her children, then
headed back to her apartment. [White] also came by
Wasson's house to return keys to a storage room. Before
he left, [White] told Wasson -- who was also an elderly
lady -- "Bell, that sure is a cute jumpsuit. I like
what's in it." Wasson passed the comment off. [White]
told Wasson he was going back to the Shepard Apartments.
However, before Wasson went to bed at 8:30 or 9:00 p.m.,
she noticed [White's] car was still parked in the parking
lot. She also noticed St. John's car in the lot in front
of the complex.
At approximately 10:30 p.m Wasson and her husband were
awakened by the tenant across the hall from St. John who
reported the mattress in the hall had been "completely
engulfed" in flames. After the tenant had doused the
flames and reported the incident to the Wassons, they all
returned to the hall, pulled the mattress out to a front
balcony, threw it down to the ground and poured more
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water on it.
Wasson at this point noticed [White's] white Valiant was
still parked out front. St. John's Pinto, however, was
gone. Wasson assumed her friend had gone to visit the
people who had moved her to Houston.
Wasson had told St. John she had an early doctor
appointment on Thursday, March 3rd, but she would be up
to the apartment to measure for blinds after that. When
Wasson went to the apartment at 8:30 or 9:00 a.m., she
noticed [White's] car was still there and St. John's was
still gone.
Because the special lock was still on the door and St.
John's car was gone, Wasson became alarmed. She went
home and told her husband they needed to see about St.
John, that something was wrong. No telephone had been
installed in St. John's apartment. Just as the Wassons
were leaving, Pat McGill, the manager of Shepard
Apartments (and [White's] boss) called and said something
that caused Wasson concern about St. John. She told
McGill to come over.
About dusk on March 3rd, McGill and Wasson went to St.
John's apartment door. Mrs. McGill crawled through a
window, accessible from the balcony. She told Wasson,
"Bell, she's in there dead." Dave Calhoun and L. E.
Doreck of the Houston Police Department Homicide Division
were the first officers on the scene. Because of the
lock device on the door, the officers had to break it in.
The temperature in the apartment was so hot in the March
evening, it was "staggering." Calhoun discovered a gas
floor heater was on as high as it would go. The
apartment was neat; there was no sign of forced entry or
a struggle. St. John's body, clothed only in a bra,
pullover blouse and stockings which were rolled to the
ankle, was covered with a blanket. Upon uncovering the
body, Calhoun observed bruises on the chin, neck and
throat. When the body was rolled over, the officers
found a screwdriver protruding from the lower back.
Eduardo Bellas, M.D., a Harris County assistant Medical
Examiner who assisted in the autopsy, would later testify
the 92 pound, 5'4" St. John, a woman of "slight" build
had died as a result of "two mechanisms of death":
asphyxia due to strangulation; and, the penetration of
the screwdriver four inches into the diaphragm, liver and
right chest cavity. There was no evidence of defensive
wounds. Acid phosphates tests and microscopic study of
vaginal swabs revealed sexual intercourse had occurred
within 24 hours of the discovery of the body. Bellas
opined St. John had been stabbed first, then strangled,
but stated there was no way to be sure. In addition to
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the clothing, six gold rings and small diamond stud
earrings remained on the body.
At the crime scene, Calhoun was directed to the white
Valiant in the parking lot in which [White] had recently
arrived after a trip to Florida. The National Crime
Information Center (NCIC) computer indicated the car was
"wanted." Officer Joe Herrin who was in charge of the
mobile crime scene unit, attempted to lift finger prints
off of things "the suspect would touch," such as the
front door, the screwdriver and the car "that was wanted
in another homicide." One print was lifted off a Coors
beer can found in the white Valiant.
Homicide Sergeant D. R. James went through St. John's
purse which was found in the apartment. Identification
and other papers were obtained from the purse, but
"nothing of great value." James testified he would have
checked the purse for money and valuables, and did not
recall finding any money.
Another Homicide Detective, John L. Bonds, went to the
scene the following morning, Friday, March 4th, to do
follow up investigation. He checked out the missing car
which had belonged to the victim and found it registered
to her. He entered it into the NCIC, requesting a hold
on the vehicle and any occupant for examination of
evidence. Norbent L. LeBlanc, a senior latent print
examiner, testified none of the prints lifted from the
apartment or the Valiant, other than the one off the
Coors can, could be identified as [White's}.
Three days later, at 3:23 a.m. on March 8th, Police
Officer Donald Edge of Myrtle Beach, South Carolina, was
patrolling the south end of the deserted resort town. He
observed [White] near a restaurant which was closed for
the "off season." About three feet away from [White] was
parked a light green Fort Pinto station wagon bearing
Texas tags. The driver's door was open. Edge arrested
[White], warned and searched him. Edge found a set of
keys in [White's] left front pocket; the keys fit the
ignition and doors of the Pinto.
Numerous objects were in the Pinto, "ranging from jewelry
to tools to a stereo plus clothing." The glove
compartment was open, and from it Edge obtained the car
registration papers. The car was registered to Elizabeth
St. John of Leander, Texas.
Lieutenant Mitchell Glen Kemp was the Investigator on
call in Myrtle Beach on March 9th. He arrived on the
scene of [White's] arrest at about 3:30 a.m., then back
at the station around 4:00 a.m. For the next five hours,
Kemp was "gathering information," by computer, as well as
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from speaking with officers in Houston by telephone
regarding [White] "and a homicide in Houston." Kemp and
his supervisor, Lieutenant Luke, interviewed [White]
starting at around 10:00 a.m. [White] waived his rights
and his inculpatory statement was reduced to writing.
The salient content of that statement, admitted before
the jury, is as follows:
The car that I was in this morning came from
Houston, Texas. I took it from the Airline
Apartments in Houston, after I choked Ms. Elizabeth
St. John and stabbed her in the back with a
screwdriver. I was drinking at the time and she
had offered to give me a bonus of $20.00 for
painting work I had done. I met Ms. St. John
through the manager of the apartments when I was
working at the apartments. I was in Houston for
about a week before I killed her. I killed Ms. St.
John a week ago Tuesday; it has been one week ago
today, and I left the screwdriver there . . . . we
had had intercourse on the couch before I killed
her. I would say that she was 52 to 56 years old
maybe . . . . After I choked her and stabbed her, I
left Houston that night and I took the stereo that
is in the car now, $45-50, a lamp, and jewelry that
is in the toolbox on the front seat. I got to
Myrtle Beach last night between 6:00 and 6:30 P.M.
and went to Dorothy's Green Bar or Green Lounge.
White v. State, 779 S.W.2d at 812-814 (footnotes deleted).
On appeal, White’s conviction and sentence were affirmed.
White v. State, 610 S.W.2d 504 (Tex. Crim. App. 1981). His state
collateral attack, filed in June 1981, was denied late that month
and his execution date was set for July 1, 1981. White then filed
an application for federal habeas relief which was granted by the
district court and affirmed by this court. White v. Estelle, 554
F. Supp. 851 (S.D. Tex. 1982). White v. Estelle, 720 F.2d 514 (5th
Cir. 1983). Our mandate issued in early 1984.
On retrial in August 1984, White was again convicted of murder
and sentenced to death. Five years later, following an automatic
appeal, the Texas Court of Criminal Appeals affirmed the second
judgment and sentence. White v. State, 779 S.W.2d 809 (Tex. Crim.
5
Ohio App. 1989). An application for a writ of certiorari was denied by
the United States Supreme Court on May 29, 1990. White v. Texas,
493 U.S. 962 (1990). White filed an application for state habeas
relief in 1990. Three and one half years later, on March 22-24,
1994, an evidentiary hearing was held on his claim of ineffective
assistance of counsel. White supplemented his petition on May 12,
1995 with an eighth amendment claim of cruel and unusual punishment
due to the inordinate delay between his sentencing and the
execution of the death penalty. After the petition had been
pending for five years, the state court trial judge entered
findings of fact and conclusions of law in July 1995 recommending
that a writ be denied. In December 1995, the Texas Court of
Criminal Appeals found that the district court’s findings of fact
and conclusions of law were fully supported by the record and
denied White a state writ of habeas corpus.
White then filed the instant federal petition in December 1995
and the district court denied relief on January 4, 1996. A few
days later, this court granted a stay of execution pending our
consideration of White’s application for a certificate of probable
cause.
In this court, White argues that the district court erred in
rejecting three of the claims he presented to it for habeas relief.
He first complains of the length of time (17 years) that he has
been on death row. White argues that the State of Texas is
responsible for this lengthy confinement and that his continuing
incarceration and pending execution constitute cruel and unusual
punishment in violation of the eighth amendment and international
6
law. Second, White argues that the state court did not engage in
independent fact finding during his habeas evidentiary hearing and
this rendered the hearing fundamentally unfair. Finally, White
contends that he received ineffective assistance of counsel at
trial in a number of respects. He contends that his counsel:
(1)failed to investigate his background; (3)failed to obtain a
psychological evaluation despite severe symptoms of mental
disorders; and (3)failed to raise a defense of automatism or to
present evidence of White’s mental disorders, for either
culpability or mitigation purposes. White asks this court to issue
a certificate of probable cause and to reverse the district court’s
rejection of his habeas petition.
II.
To qualify for a certificate of probable cause, White must
make a “substantial showing of the denial of a federal right”
Barefoot v. Estelle, 463 U.S. 880, 893 (1983). This requires that
White “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.” Id at 893 n. 4 (citations and
quotations omitted). We review White’s application in light of
this standard.
A.
White argues first that the district court erred in rejecting
his claim that he has been on death row for so long that to execute
him now would be cruel and unusual punishment in violation of the
7
eighth amendment.
We considered this issue in Lackey v. Scott, 52 F.3d 98 (5th
Cir. 1995). In Lackey, we vacated the district court’s stay of
execution and held that an identical claim was barred by the
nonretroactivity doctrine of Teague v. Lane, 489 U.S. 288, 310
(1989)(“new constitutional rules of criminal procedure will not be
applicable to those cases which have become final before the new
rules are announced.”). Lackey then sought a stay from the Supreme
Court. The Supreme Court issued a per curiam order granting a stay
of execution to allow the district court to hear Lackey’s petition
on the merits. White argues that the Supreme Court’s order
effectively vacated our decision in Lackey and that he now presents
us with an issue of first impression. We disagree.
Our decision in Lackey remains the law of this circuit until
reversed, vacated or remanded. The Supreme Court’s reinstatement
of the stay in Lackey did not pass on the merits of our decision
and this panel cannot reject the controlling precedent of this
circuit in favor of White’s speculation on what the Supreme Court’s
action in Lackey could mean. A stay does not reverse, annul, undo
or suspend what has already been done or what is not specifically
stayed. Accordingly, we are bound to hold that Teague precludes
relief on White’s eighth amendment claim.1
However, even if this court was not bound to follow Lackey we
1
In addition to our decision on Lackey’s second habeas
petition, discussed above, our decision on Lackey’s first habeas
petition also stands as precedent on this issue. See, Lackey v.
Scott, 28 F.3d 486, 492 (5th Cir. 1994)(Teague bars claim in
federal habeas petition that execution after lengthy imprisonment
violates Constitution because punishment is grossly out of
proportion with the crime committed). Accordingly
8
would agree with the district court that Teague applies. “[A] case
announces a new rule if the result was not dictated by precedent
existing at the time the defendant’s conviction became final.”
Teague, 489 U.S. at 301. As a panel of this court noted in
Fearance v. Scott, federal courts have encountered the claim that
prolonged incarceration before execution is cruel and unusual
punishment for decades. 56 F.3d 633 (5th Cir.) cert. denied 115
S. Ct. 2603 (1995). To date, no federal court has recognized such
a theory of cruel and unusual punishment. Stafford v. Ward, 59
F.3d 1025, 1028 (10th Cir.) cert. denied 115 S.Ct. 2640(1995).
See also, McKenzie v. Day, 57 F.3d 1461 (9th Cir.) opinion adopted,
57 F.3d 1493, 1494 (en banc), cert. denied, 115 S. Ct. 1840 (1995);
Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990). White’s claim is
not new in the sense that no one has ever attempted to argue it
before. However, White can point to no precedent existing in 1990
when his conviction became final (and no precedent today) that
would require the district court to grant him habeas relief if it
finds that he has remained on death row for 17 years due to the
fault of the state. Therefore, to grant White’s petition would
require us to announce a new and retroactive procedural rule
declaring that prolonged incarceration prior to execution of the
death sentence violates the eighth amendment. Teague forecloses
such a holding. Teague, 489 U.S. at 310.
White argues that Teague should not bar his claim because a
Lackey claim cannot ordinarily be raised on direct appeal due to
the fact that much of the delay complained of arises in post-
conviction proceedings. This is a valid criticism of Teague but it
9
does not alter the Supreme Court’s holding. In fact, Justice
Brennan dissented from the holding in Teague precisely because it
would “deprive [the Court] of the manifold advantages of deciding
important constitutional questions when they come to [the Court]
first or most cleanly on collateral review.” Teague, 489 U.S. at
345 (Brennan dissenting). Commentators note that, under the
mandate of Teague, even issues which, as a practical matter, could
never be raised on direct appeal are unreviewable in habeas
proceedings. See James S. Liebman & Randy Hertz, Federal Habeas
Corpus Practice and Procedure, § 25.4 at 749 (2d Ed. 1994). Even
if we accept White’s assertion that he could not have raised his
Lackey claim on direct review, we must still find it barred by
Teague.
White next argues that even if Teague bars his claims, he
falls within its exceptions. Under Teague, courts can
retroactively apply new rules to final convictions where the new
rule will: (1) place certain kinds of primary, private individual
conduct beyond the power of the criminal law-making authority to
proscribe, or prohibit a certain category of punishment for a class
of defendants because of their status or offense; or (2) require
the observance of those procedures that are implicit in the concept
of ordered liberty. Liebman & Hertz, Federal Habeas Corpus Practice
and Procedure, § 25.1 at 717; Teague, 489 U.S. at 307; Penry 492
U.S. at 330.
White argues that he meets the first exception to Teague
because the rule that he requests would make it unconstitutional to
execute an entire class of defendants, those who due to no fault of
10
their own have been on death row for too long. See Penry v.
Lynaugh, 492 U.S. 302, 330 (1989). However, our acceptance of
White’s argument would not place any primary conduct beyond
prohibition and would not prohibit any category of punishment
currently in use for specific offenses. See, Lackey, 52 F.3d at
100. White’s argument also fails because his proposed “class” has
no innate characteristic such as insanity or mental retardation
which precludes imposition of the death penalty under the
Constitution, See Id; Ford v. Wainwright, 477 U.S. 399, 401
(1986), and is not made up of individuals whose conduct was not
eligible for punishment by death at the time of sentencing. See
Coker v. Georgia, 433 U.S. 584 (1977) (petitioner convicted of rape
not eligible for death penalty).
White also seeks to fall under Teague’s second exception but
does not advance any argument as to how granting his claim would
require courts to follow “procedures implicit in the concept of
ordered liberty.” In fact, White’s claim demands that capital
punishment be carried out quickly in spite of the importance of
thorough factfinding in capital cases and the state’s compelling
interest in ensuring that it does not execute innocent defendants.
We agree with the State that White’s proposed rule requiring speedy
executions would not improve factfinding and is not implicit in the
concept of ordered liberty. As a result, we find that White’s
eighth amendment claim does not fall under Teague’s second
exception to the nonretroactivity rule.
For all of these reasons we find that Teague bars White’s
eighth amendment claim. Lackey remains the law of this circuit and
11
we are bound to follow it. Further, it is undisputed that the rule
that White asks us to announce and apply in his case has never
before been embraced by a United States court. It is a new rule
and cannot be applied retroactively under Teague unless it falls
within one of two narrow exceptions, neither of which apply to
White. As a result, the district court correctly concluded that
White’s eighth amendment claim was Teague barred.
B.
Even if this court were to consider White’s eighth amendment
claim on the merits, we would not grant him the relief he seeks.
As the district court correctly noted, there are compelling
justifications for the delay between conviction and the execution
of a death sentence. The state’s interest in deterrence and swift
punishment must compete with its interest in insuring that those
who are executed receive fair trials with constitutionally mandated
safeguards. As a result, states allow prisoners such as White to
challenge their convictions for years. White has benefitted from
this careful and meticulous process and cannot now complain that
the expensive and laborious process of habeas corpus appeals which
exists to protect him has violated other of his rights. Throughout
this process White has had the choice of seeking further review of
his conviction and sentence or avoiding further delay of his
execution by not petitioning for further review or by moving for
expedited consideration of his habeas petition.
Even if much of the delay in this case is the fault of Texas,
White cannot now complain of cruel and unusual punishment. White
made no effort to inform the Texas courts that their delay was
12
detrimental to him or to ask for expedited review of his petition
and we cannot fault them for assuming that White would be grateful
for or, at least, indifferent to the delay. White cannot expect
Texas courts to know that he wants to get on with his execution
without telling them. A motion for expedited review is also
necessary so that reviewing courts can distinguish between
strategic behavior on the part of the prisoner who quietly waits
with the hope of asserting a Lackey claim later and bona fide
claims of malicious or intentional state delay. See Fearance v.
Scott, 56 F.3d at 639. Further, White fails to allege that the
delay in his case is due to anything other than court backlog and
does not offer any evidence that Texas’ delay in considering his
petition was intentional or even negligent.
White relies on the decision of the United Kingdom’s highest
court for the proposition that “it is an inhuman act to keep a man
facing the agony of execution over a long, extended period of
time.” Pratt & Morgan v. Attorney General of Jamaica, Privy
Council Appeal No. 10 of 1993, slip op. at 16, reported at 3 W.L.R.
995, 143 N.L.J. 1639, 2 A.C. 1, 4 All E.R. 769 (British Privy
Council Nov. 2, 1993)(en banc). In Pratt, the prisoners were read
execution warrants several times in the face of repeated execution
dates which were then stayed at the last minute. White, in
contrast, prevailed on his first federal habeas challenge to his
conviction and sentence and his first execution date was vacated.
Following his second trial, White’s second execution date was set
less than 5 months ago and only after he had exhausted his remedies
in state court. White also alleges no extraordinary facts or
13
unusual conditions beyond the inevitable anxiety of waiting for an
execution date which cannot be avoided in a system of capital
punishment. See, Turner v. Jabe, 58 F.3d 924, 930 cert. denied 115
S. Ct. 2019 (1995). As a result, we are not persuaded that White
has been subject to cruel or unusual punishment.
No other circuit has found that inordinate delay in carrying
out an execution violates the condemned prisoner’s eighth amendment
rights. See e.g., Stafford, 59 F.3d at 1028 (10th Cir.); McKenzie,
57 F.3d at 1494; Free v. Peters, 50 F.3d 1362 (7th Cir.) cert.
denied, 115 S. Ct. 1397 (1995); Fearance, 56 F.3d at 639 (5th Cir.)
These courts faced claims that were raised in successive petitions
for a writ of habeas corpus while White makes his claim in his
first federal habeas appeal from his second conviction. As a
result, White does not have to show cause in order to avoid
dismissal as an abuse of writ. Nevertheless, the reasoning of the
courts which have considered Lackey claims demonstrates that even
without the procedural bar, these courts would have found the claim
meritless as we have. See Stafford, 59 F.3d at 1028 (10th
Cir.)(“We conclude that Appellant has failed to show that executing
him after fifteen years on death row, during which time he faced at
least seven execution dates, would constitute cruel and unusual
punishment”); McKenzie, 57 F.3d at 1494 (9th Cir.) (“We thus
decline to recognize Richmond’s lengthy incarceration on death row
during the pendency of his appeals as substantively and
independently violative of the Constitution”); Free v. Peters, 50
F.3d 1362 (7th Cir.) (rejecting claim that to execute petitioner
after almost two decades of pursuing appeals and collateral relief
14
is cruel and unusual punishment) cert. denied, 115 S. Ct. 1397
(1995); Fearance, 56 F.3d at 639 (5th Cir.) (Fearance was not the
unwilling victim of a Bleak House-like procedural system hopelessly
bogged down; at every turn, he, without complaining about the
accumulating period on death row, sought extensions of time,
hearings, and reconsiderations.”).
For these reasons, we conclude that White’s eighth amendment
claim would not entitle him to habeas corpus relief even if it were
not barred by Teague v. Lane.2
III.
White next argues that his counsel was ineffective and that
the state court’s verbatim adoption of the government’s proposed
findings of fact and conclusions of law resulted in a fundamentally
unfair hearing on his ineffective assistance of counsel claim. We
affirm the district court’s ruling on these issues on the basis of
2
White also argues that “binding norms of international law”
compel us to follow Pratt & Morgan and strike down his death
sentence as a violation of his human rights. This argument is
meritless. White argues that since his conviction became final,
the United States has signed the International Covenant on Civil
and Political Rights and the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment. Both of these
treaties prohibit “torture or cruel, inhuman or degrading
punishment or treatment.” However, the United States Senate filed
reservations with respect to both of these treaties which contend
that the United States understands the language in these treaties
to mean “cruel and unusual punishments” as defined by the eighth
amendment. White’s claims are barred by Teague for the same
reasons his eighth amendment claims are barred. White’s conviction
was legal under international law when it became final in 1990.
Further, even if we did consider the merits of this claim, we would
do so under the Senate’s reservation that the treaties only
prohibit cruel and unusual punishment. As we have noted above,
even on the merits, this argument would fail.
15
Judge Harmon’s well-reasoned January 4, 1996 opinion.
Conclusion
White’s eighth amendment and international law claims of
cruel and unusual punishment are barred by Teague and controlled
by our decision in Lackey. On the merits, these claims would
likewise fail because the delay that White complains of arises
from post conviction proceedings which exist to protect White and
which White, himself, requested when he petitioned for habeas
relief.
White’s claim that his evidentiary hearing was fundamentally
unfair and his claim that his counsel was ineffective are also
meritless and we decline to issue a certificate of probable cause
on these issues for the reasons given by the district court.
For all of these reasons, we VACATE our stay of execution
and DENY White’s petition for a certificate of probable cause.
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