Leon Rutherford King v. James A. Lynaugh, Director, Texas Department of Corrections, Respondent

ALVIN B. RUBIN, Circuit Judge:

In this capital case, a Texas inmate appeals from the district court’s order denying his petition for habeas corpus relief under 28 U.S.C. § 2254. Because the petitioner’s eighth and fourteenth amendment right to exercise voir dire challenges knowingly was infringed when the state trial court refused to allow him to ask questions directed towards determining whether veniremembers harbored misconceptions about Texas parole law that might bias them in favor of capital punishment, he has a right to be resentenced.

I.

On October 16, 1978, Leon Rutherford King was convicted of the capital murder of Michael Clayton Underwood and sentenced to be executed. The facts of the crime are recounted by the Texas Court of Criminal Appeals in King v. State, 631 S.W.2d 486 (Tex.Crim.App.1982) (en banc). King’s original conviction was overturned by the Texas Court of Criminal Appeals on February 6, 1980, and a retrial was ordered.¹ In May 1980, King was convicted and sentenced to death a second time. That conviction was affirmed by the Texas Court of Criminal Appeals,² and King’s subsequent petition for a writ of certiorari was denied by the Supreme Court.³ King then sought collateral review of his conviction in the state courts, with no success. His ensuing federal habeas corpus petition was denied by federal district court in 1986, but King was granted a certificate of probable cause to appeal and now does so.⁴

King raises three issues concerning the constitutionality of his second trial. He contends: (1) the trial court violated his sixth and fourteenth amendment rights by failing to permit him to conduct voir dire directed toward discovering whether veniremembers harbored serious misconceptions about Texas parole law that might have biased them in favor of capital punishment; (2) his trial was rendered unfair and his entitlement to a presumption of innocence defeated when two jurors saw him bound in handcuffs on the second day of his trial during an emergency evacuation of the courthouse due to a fire; and (3) he was denied his rights under the eighth and fourteenth amendments by the trial court’s refusal to allow him to conduct his own defense during the penalty phase of his trial.

II.

King contends that the voir dire he requested was necessary to dispel the common misconception that a life sentence might result in incarceration for only nine to ten years and to permit him to use peremptory challenges against prospective jurors whose erroneous assumptions about parole law might have biased them in favor of imposing the death penalty.

The state contends that King’s claims are premised on the erroneous assumption that a jury instruction on parole issues is constitutionally mandated in capital cases. Under Texas law in effect at the time of King’s trial⁵ courts were precluded in all cases from giving jurors instructions on the Texas parole eligibility law. The com stitutionality of this rule, Texas argues, has been confirmed in O’Bryan v. Estelle.⁶ In O’Bryan, a panel of this court held that the due process clause does not give capital defendants the right to an instruction about the possibility of parole for a person sentenced to life imprisonment. King’s characterization of his claim as a challenge to an impermissible restriction on voir dire, the state continues, merely restates the issue in different terms because King can claim no right to accomplish through voir dire what he may not accomplish with a jury instruction.

Even if the state is correct in asserting that O’Bryan forecloses King’s claim that he is constitutionally entitled to a jury instruction on parole law upon request, however, it does not follow that King is not entitled to inquire about preconceptions of parole law harbored by veniremembers so that he can, at least, exercise his peremptory challenges knowingly.

The right to an impartial jury is basic to our system of justice.⁷ This right carries with it the concomitant right to take reasonable steps designed to ensure that a jury is impartial. Perhaps the most important device to serve this end is the jury challenge,⁸ a device based on voir dire examination.⁹ Although the proper scope of voir dire is generally left to the sound discretion of the trial court,¹⁰ that discretion is not unfettered. Limits on voir dire that create an unreasonable risk of bias or prejudice infecting the trial process violate due process.¹¹

The Supreme Court has recognized “that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.”¹² The severity of the punishment is, however, not the only factor dictating that voir dire in capital cases be closely scrutinized. In such cases an accused’s right to an impartial jury also must be more carefully safeguarded because capital juries are called upon to make a “highly subjective, ‘unique, individualized judgment regarding the punishment that a particular person deserves.’ ”¹³ Because of the range of discretion entrusted to juries in capital cases, a unique opportunity exists for bias to operate undetected.¹⁴ The Court, therefore, has struck down capital sentences whenever it has found that the circumstances under which they were imposed created an unacceptable risk that the death penalty may have been imposed “arbitrarily or capriciously” or through “whim ... or mistake.” ¹⁵

The significance of the information King sought to discover is clear. A juror might decline to impose the death penalty if the alternative were confinement of the criminal for life without possibility of parole because the general public would be adequately protected by such a life sentence. Similarly, a juror might decline to impose the death penalty on a particular defendant if he believed that the individual to be sentenced would no longer represent a menace if he were confined for at least twenty years without parole for the crime he committed. If, on the other hand, a juror believed it were likely — or even possible — that a convicted person would be released in a few years and the juror believed that the criminal would then still constitute a hazard to the public, that juror might conclude that only the death penalty would adequately ensure public safety.

Because widely held misconceptions about the actual effect of imposing a life sentence raise an unacceptable risk that the death penalty may be imposed on some defendants largely on the basis of mistaken notions of parole law, defendants in capital cases are at least entitled to determine whether such misconceptions are held by veniremembers and to exercise peremptory challenges to protect themselves against the effects of error. The state contends that, by instructing the jury that parole “is no concern of yours” and is not to be considered, the court benefitted King by essentially telling the jury that “life means life.” If a misconception exists, no instruction that merely directs jurors to disregard issues of parole in making their sentencing determination can erase that fallacy from their minds. That voir dire could easily minimize the risk to the accused created by this misconception strengthens King’s claim to constitutional protection from the potential ramifications of failing to strike a juror who harbors a mistaken belief.¹⁶

As the dissent points out, the scope of voir dire has been consistently and correctly held to be within the discretion of the trial court. The Supreme Court cases evaluating the voir dire of veniremembers exposed to adverse pretrial publicity,¹⁷ however, support our view that the ambit of this discretion does not extend to prohibiting a defendant whose life is at stake from inquiring about misconceptions or preconceptions that might bias the jury so as to exercise intelligently his peremptory challenges. In Patton v. Yount, the most recent of the pretrial-publicity cases, the Court stressed that trial judges, who observe and participate in voir dire, are best placed to assess a veniremember’s impartiality and that a factual finding of impartiality should, therefore, be presumed correct.¹⁸ Nonetheless, the court reaffirmed that, had “the jurors at Yount’s trial had such fixed opinions that they could not judge impartially the guilt of the defendant,” ¹⁹ Yount would have been deprived of a fair trial and stripped of his right to due process.²⁰ Following the logic of Supreme Court precedent, this court has held that when the record reveals a significant possibility that pretrial publicity prejudiced the venire the district court is obligated to conduct individual voir dire to assure impartiality.²¹ If preconceptions based on unreliable pretrial publicity might so bias a jury as to taint the trial, then misconceptions about the possibility of early parole might so bias a jury as to undermine due process in a capital sentencing proceeding, making adequate voir dire necessary to afford the defendant “reasonable assurance that prejudice would [have been] discovered if present.”²²

In addition to assessing the adequacy of voir dire in highly publicized cases, this circuit has before addressed questions about the accused’s right to inquire about veniremembers’ understanding of the law. In Moreno v. Estelle,²³ Moreno sought habeas corpus relief from his conviction for aggravated assault and from his life sentence under the enhancement provisions of the Texas habitual offender statute.²⁴ He contended that he had been denied a fair trial by an impartial jury because the trial court had refused to allow him to question prospective jurors about their willingness to impose an enhanced sentence should this be required. He argued that Texas law clearly established his right to conduct such voir dire. This court deferred to the Texas Court of Criminal Appeals’ holding that the trial court’s error of state law in restricting voir dire had been rendered harmless by its later jury charge.²⁵ The opinion went on to say that Moreno’s challenge to the restriction of voir dire presented no federal constitutional question but was purely a matter of state criminal procedure.²⁶ That Moreno had no federal right to question veniremembers about their view of enhanced punishment does not mean that King had no right to conduct voir dire on parole law. Moreno involved the jurors’ willingness to follow the requirements of the Texas habitual offender statute, but a trial judge’s admonition to jurors to follow the law as stated obviates the need for specific inquiry into their views on every law relevant to trial or sentencing.²⁷ In this case, however, both the voir dire and the trial judge’s instructions were inadequate to dispel biasing misconceptions about parole law, in part because Texas law prohibits jury instructions on parole. This prohibition makes adequate voir dire all the more important.

A more recent case, Milton v. Procunier,²⁸ is distinguishable on similar grounds. Milton challenged the voir dire leading to his capital conviction, arguing that the trial judge had improperly excluded questions about veniremembers’ understanding of the terms “deliberately,” “probability,” and “criminal acts of violence.”²⁹ This court found no abuse of discretion because the voir dire taken as a whole was “painstaking” and because in the context of the voir dire and the jury instructions, the allegedly ambiguous terms took on sufficiently precise meanings to afford the jury the guidance required in capital cases.³⁰ King did not have the benefit of such clarification. If jurors began with an unfounded fear that a life sentence might result in early parole, they ended with that fear. Thus, while the requested voir dire may have been superfluous in Moreno and Milton, it was essential here.

Our determination that King was improperly denied an opportunity to conduct voir dire on issues that might influence the sentencing phase of his trial raises a second important issue: whether, under federal law, this infringement on the voirdire process requires reversal of King’s conviction or merely resentencing. In Turner v. Murray,³¹ a capital defendant charged with an interracial killing challenged the refusal of the state trial court to conduct voir dire regarding prospective jurors’ racial biases. A plurality of the Supreme Court, joined by Chief Justice Burger concurring in the result, held that the decision of the trial court created an unacceptable risk that racial prejudice would infect the sentencing proceeding but that the imperatives requiring intervention in the sentencing phase of the trial were not sufficiently involved in the guilt phase to require retrial of that issue.³² Because the risk that the trial court’s refusal to permit King to conduct voir dire regarding jurors’ preconceptions about Texas parole law does not, under the circumstances of this case, create substantial risk that the guilt phase of his trial was tainted by juror bias, resentencing is a sufficient remedy under federal law.

III.

King also asserts that he was entitled to a jury instruction concerning the minimum duration of a life sentence in Texas. Although he did not request such a charge, he excuses his failure to do so by arguing that such a request would have been futile after the trial court had denied him even the opportunity to conduct voir dire on the parole issue. His failure to make the request may foreclose his right now to raise the issue,³³ but the controversy is not moot. Because recent changes made by the Texas legislature that now require parole instructions for certain felonies explicitly exclude capital offenses,³⁴ the issue will arise again at resentencing.

A.

The decision in O’Bryan v. Estelle³⁵ that due process does not entitle a defendant to an instruction on parole in capital cases represents a substantial leap from the principles enunciated by the Supreme Court in California v. Ramos.³⁶ In Ramos, the Supreme Court determined that a court might instruct a jury without violating a defendant’s constitutional rights that a sentence of life without possibility of parole was commutable by the governor. The Court noted, however, that its determination that a state may inform jurors of the governor’s power to commute sentences was “not intended to override the contrary judgment of [other] state legislatures____ It is elementary that States are free to provide greater protections in their criminal justice system than the Federal Constitution requires____We hold only that the Eighth and Fourteenth Amendments do not prohibit such instruction.”³⁷ Although the Court rejected Ramos’s contention that the state must also inform the jury that the governor may commute death sentences if it permits instructions on commutation of life sentences without parole, it did so because such information would not mitigate the likelihood that death would be the sentence chosen.³⁸ This cannot be said about the instruction King seeks. When sentencing jurors may harbor the type of misconceptions about parole law King describes, the instruction he requests, unlike the instruction demanded in Ramos, would certainly mitigate against imposition of the death penalty.

In deciding Ramos, the Supreme Court confronted a different issue: whether a capital defendant is constitutionally entitled to have accurate, potentially aggravating information relevant to sentencing determinations excluded from jury consideration. O’Bryan's and King’s challenges were directed toward state policy precluding them from introducing equally accurate information that they believe mitigates against the death penalty under the circumstances of their cases. As the Supreme Court held in Hicks v. Oklahoma,³⁹ a defendant’s interest in the exercise of the jury’s discretion in imposing punishment is a liberty interest protected by due process. A state’s decision to impinge on jury discretion in a capital case by precluding the defendant from informing jurors of the practical meaning of their sentencing options violates that interest.

B.

O’Bryan is distinguishable from this case in considering only whether a requested parole instruction is required by due process whereas King has challenged the Texas rule on both due process and eighth amendment grounds. Although eighth amendment jurisprudence contradicts the rationale of O’Bryan, the O’Bryan reasoning is derived directly from Ramos, in which the requirements of the eighth amendment and the due process clause were collapsed into a common analysis. Eighth amendment jurisprudence, however, provides a critical insight into the substance of the fundamental interest at stake.

As the Supreme Court recently reaffirmed in McCleskey v. Kemp ⁴⁰ the eighth amendment forbids “states [to] limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the [death] penalty. In this respect, the state cannot channel the sentencer’s discretion, but must allow it consider any relevant information offered by the defendant.”⁴¹ Alternative sentences and what, in reality, they mean constitute just such relevant information and circumstances. Although such information does not relate directly to a defendant’s character or record, it is an integral part of the calculus sentencers use to determine whether a life sentence will suffice to ensure that a particular defendant, convicted of a particular crime, will pose a continued threat to society.

In most jurisdictions, courts sentence noncapital defendants. In such circumstances the trial judge properly instructs the jury to determine guilt or innocence without considering the sentence that might be imposed, for sentencing is the duty of the court. In capital cases, however, sentencing becomes the duty of the jury alone, either by voting directly on the penalty or, as in Texas, by determining the existence of factors that require its imposition. Thus, in Texas, the capital sentence cannot be imposed unless the state proves three issues beyond reasonable doubt and the jury answers, “Yes,” to each of these questions:

(1) 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;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.⁴²

A juror’s answer to the second question would certainly be influenced by his impression of when the defendant will again become a member of society. Those who decide the answer to such a question should know not only the meaning of the inquiry but all facts the defendant reasonably believes relevant to the answer.

C.

This court has recently held that the failure of counsel for a defendant to advise a sentencing court of sentencing alternatives constitutes ineffectiveness of counsel and, hence, a denial of due process.⁴³ We have also held that a defendant who raises a genuine issue as to the sentencing judge’s knowledge and understanding of the range of sentencing discretion is entitled to a hearing before a new judge in order to determine whether the sentencing judge failed to exercise informed discretion.⁴⁴ If due process ensures that a judge must fully understand his sentencing options, the necessity of providing such information to a jury exists a fortiori. For Texas to deny a defendant the opportunity to present information about parole eligibility is, therefore, to limit his decision to bring to the sentencer’s consideration relevant information and circumstances that might cause the jury to decline capital punishment. The practice is unconstitutional both because it denies him due process and because it subjects him to what amounts to arbitrary infliction of the death penalty.

Nonetheless, “in the absence of intervening and overriding Supreme Court decisions,” ⁴⁵ one panel of this court is not free to overrule another. Although McCleskey sets forth principles of eighth amendment jurisprudence that we believe are fundamentally inconsistent with O’Bryan, those principles predate our decision in that case. Therefore we believe that, until O’Bryan is overruled en banc, its holding and rationale remain the law in this circuit.

IY.

On the second day of King’s trial, a fire broke out in the courthouse and all present were required to evacuate. The bailiff handcuffed King and other defendants together in a chain and evacuated them from the building. Although he took precautionary measures to prevent the jurors from seeing King, two of the jurors saw King in handcuffs outside the courthouse. After the jury had returned its verdicts of guilt and punishment, King’s counsel learned of this incident and filed a motion for a new trial, contending that the incident deprived King of an impartial jury and undermined his right to a presumption of innocence. At the hearing, the two jurors who had seen King in handcuffs, Mary Ann Kirtley and Thomas Thompson, both testified unequivocally that their brief and unplanned exposure to King while he was in handcuffs did not in any way influence or affect their deliberations. Moreover, both jurors testified that there had been no discussion in the jury room about their seeing King outside the courthouse in handcuffs. The state court implicitly concluded that King suffered no prejudice from this incident.

We find no reason to disagree with the state court’s conclusion. “[T]he Constitution ‘does not require a new trial every time a juror has been placed in a potentially compromising situation ... [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.’ ”⁴⁶ This circuit has determined “that brief and inadvertent exposure to jurors of defendants in handcuffs is not so inherently prejudicial as to require a mistrial, and defendants bear the burden of affirmatively demonstrating prejudice.”⁴⁷ Because King has failed to show any prejudice resulting from his brief exposure in handcuffs before these two jurors, he has not established that the incident deprived him of his constitutional right to a fair trial.

V.

Because we have held that King is entitled to be resentenced due to the trial court’s improper infringement on voir dire, we do not reach his contention that he was unconstitutionally denied the right to represent himself during the penalty phase of his trial.

For the reasons stated above the order of the district court is affirmed in part and reversed in part and a writ of habeas corpus granted. The State shall be given the option either of retrying or resentencing the. petitioner within 120 days, as may be appropriate under Texas law.⁴⁸

1 . King v. State, 594 S.W.2d 425 (Tex.Crim.App.1980) (en banc).

2 . King v. State, 631 S.W.2d 486 (Tex.Crim.App.1982) (en banc).

3 . King v. Texas, 459 U.S. 928, 103 S.Ct. 238, 74 L.Ed.2d 188 (1982).

4 . King v. McCotter, 795 F.2d 517 (5th Cir.1986).

5 . See, e.g., Munroe v. State, 637 S.W.2d 475, 476-77 (Tex.Crim.App.1982) (en banc).

6 . 714 F.2d 365, 388-89 (5th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984). See also Andrade v. McCotter, 805 F.2d 1190 (5th Cir.1986); Turner v. Bass, 753 F.2d 342 (4th Cir.1985), rev'd on other grounds, 476 U.S. 1, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986).

7 . See, e.g., Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 1767, 90 L.Ed.2d 137 (1986).

8 . Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894).

9 . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 1719 n. 12, 90 L.Ed.2d 69 (1986).

10 . See Ristaino v. Ross, 424 U.S. 589, 595, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976).

11 . See Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 1687, 90 L.Ed.2d 27 (1986); Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973).

12 . California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3452, 77 L.Ed.2d 1171 (1983).

13 . Caldwell v. Mississippi, 472 U.S. 320, 340-41 .n. 7, 105 S.Ct. 2633, 2645-46 n. 7, 86 L.Ed.2d 231 (1985) (quoting Zant v. Stephens, 462 U.S. 862, 900, 103 S.Ct. 2733, 2755, 77 L.Ed.2d 253 (1983) (Rehnquist, J., concurring)).

14 . Turner, 476 U.S. at-, 106 S.Ct. at 1687.

15 . Id. at-, 106 S.Ct. at 1688 (citing Caldwell, 472 U.S. 320, 105 S.Ct. at 2647, 86 L.Ed.2d 231 (1985) (O’Connor, J., concurring in part and concurring in judgment)).

16 . See Id. at-, 106 S.Ct. at 1688.

17 . Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984).

18 . 467 U.S. at 1036-38, 104 S.Ct. at 2891-92.

19 . Id. at 1035, 104 S.Ct. at 2891.

20 . See also Irvin, 366 U.S. at 722, 81 S.Ct. at 1642.

21 . United States v. Hawkins, 658 F.2d 279, 282-85 (5th Cir.1981).

22 . Id. at 285 (quoting United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.1976)).

23 . 717 F.2d 171 (5th Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984).

24 . Id. at 172-73.

25 . Id. at 178-79.

26 . Id. at 179.

27 . See United States v. Williams, 573 F.2d 284, 287-88 (5th Cir.1978); United States v. Ledee, 549 F.2d 990, 991-92 (5th Cir.1977), cert. denied, 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188 (1977).

28 . 744 F.2d 1091 (5th Cir.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985).

29 . Id. at 1095.

30 . Id. at 1096. Accord Esquivel v. McCotter, 777 F.2d 956, 957 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1662, 90 L.Ed.2d 204 (1986).

31 . 476 U.S. 1, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) .

32 . Id. at-, 106 S.Ct. at 1688-89.

33 . See Riles v. McCotter, 799 F.2d 947, 952 (5th Cir.1986); O’Bryan v. Estelle, 714 F.2d at 385. See also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Tex.Code Crim.Proc.Ann. arts. 36.14, 36.15 (Vernon Supp.1987).

34 . See Tex.Code Crim.Proc.Ann. art. 37.07 § 4 (Vernon Supp.1987).

35 . 714 F.2d at 388-89.

36 . 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983).

37 . Id. at 1013-14, 103 S.Ct. at 3459-60.

38 . Id. at 1010-12, 103 S.Ct. at 3458-59.

39 . 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980).

40 . — U.S. -, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). See also Hitchcock v. Dugger, — U.S. -, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 113, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586. 602. 98 S.Ct. 2954. 2963. 57 L.Ed.2d 973 (1978) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion).

41 . — U.S. at-, 107 S.Ct. at 1774 (emphasis added).

42 . Tex.Code Crim.Proc.Ann. art. 37.071 (Vernon Supp.1987).

43 . Burley v. Cabana, 818 F.2d 414 (5th Cir.1987).

44 . See Anderson v. Jones, 743 F.2d 306, 308 (5th Cir.1984); Williams v. Maggio, 730 F.2d 1048, 1049 (5th Cir.1984); Hickerson v. Maggio, 691 F.2d 792, 794-95 (5th Cir.1982).

45 . White v. Estelle, 720 F.2d 415, 417 (5th Cir.1983).

46 . Rushen v. Spain, 464 U.S. 114, 118, 104 S.Ct. 453, 455, 78 L.Ed.2d 267 (1983) (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982)).

47 . United States v. Diecidue, 603 F.2d 535, 549 (5th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980) (citing Wright v. Texas, 533 F.2d 185, 187 (5th Cir.1976)). Accord United States v. Webster, 750 F.2d 307, 331 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985); United States v. Escobar, 674 F.2d 469, 479 (5th Cir.1982); Grantling v. Balkcom, 632 F.2d 1261 (5th Cir.1980).

48 . See Brown v. Estelle, 591 F.2d 1207 (5th Cir. 1979).